Mohamed Sharil Mohamed Tarmizi
IT has been more than a month since the Malaysian Communications and Multimedia Commission (MCMC) investigated Malaysiakini for putting up two video reports — one about the 28 Aug 2009 cow-head protest and the other depicting the home minister’s defence of the protesters in a press conference.
No charges have been brought against the online news portal despite the intensity of the investigations over several days in September. In the midst of the investigations, the MCMC had to fob off accusations that they were not abusing their power to clamp down on the new media.
To Malaysiakini‘s credit, they have refused to remove the two video reports despite the investigations, which have since stopped. Still, the probe into Malaysiakini over the two videos is not the first time the MCMC has taken action against websites and internet users. In August 2008, the MCMC instructed internet service providers (ISPs) to block popular website Malaysia Today due to “insensitive” comments that were posted.
In February 2009, the first conviction under the Communications and Multimedia Act (CMA) 1998 took place in relation to insulting comments directed at the Sultan of Perak following the coup in Perak. The offender pleaded guilty to a charge under Section 233 of the Act, which makes it an offence to post a comment which is offensive in character with the intent to annoy, abuse, threaten or harass another person. This is the same section that Malaysiakini was being investigated under.
Home Minister Hishammuddin
Hussein (Courtesy of theSun)Annoy? Yes, offenders can potentially be fined up to RM50,000 or jailed for up to one year or both for intending to annoy others through their online publication. Notwithstanding the fact that no charges have been brought against Malaysiakini, nor are any likely to be made, The Nut Graph spoke to Mohamed Sharil Mohamed Tarmizi, chief operating officer and acting chairperson of the MCMC, on 30 Sept 2009 about the commission’s role and powers.
TNG: What does the MCMC do?
Mohamed Sharil: We’re charged with the development of the communications and multimedia sector in Malaysia. We cover telecoms, broadcasting, internet, broadband, cellular services, radio frequency management, numbering and electronic addressing, as well as postal and courier services.
Our task is to create the right environment for businesses and online people such as yourselves to grow. In a way, we’re like gardeners tending to a garden of sorts; but at times, like a gardener, if there are weeds, you have to remove them. We do what we do in accordance with the law of the land.
Does the MCMC function independently? Is it supposed to be an independent commission?
We are as independent as the law prescribes. It’s very easy to fall into a false pretense of what independence means. We are based on the functions of the law. [The law sets out the functions of the commission and the minister, and there’s a check and balance.]
Who initiates investigations?
We’re not very big. Typically, we act on public complaints. Somebody calls up, they say they’ve seen or heard something, they want to lodge a report. So we take in the report and then we investigate.
Section 211 and 233 [of the CMA] states that providing content which is offensive with the intent to annoy is an offence. The word “annoy” in Sections 211 and 233 — it seems so broad. What is your take on it?
I think this is something that the courts should decide. I can appreciate that there can be a situation where what is annoying to one person may not be annoying to another. [For the MCMC], if someone who is offended or annoyed makes a report, then we have to investigate.
We go and interview people, gather evidence and submit it to the Attorney-General [who decides whether or not to prosecute]. Sometimes we get told there’s no case, so that’s the end of the investigation. If they say proceed, then we have leave to prosecute.
Without going into any specific cases, if something offensive is done and it is filmed and published online, is that “just reporting”? Or can the online media also fall foul of the Act?
I cannot speak about the Malaysiakini case, so what I’m going to say is largely hypothetical.
What does “just reporting” mean? If something done is so heinous and it’s reported, it may be possible that the act of reporting may well be a crime in itself. If someone videoed something heinous and it is uploaded in the interest of reporting the news, where do you draw the line? Is that news? What about the victim? Isn’t the victim entitled to be protected?
It is difficult. That’s why we don’t try to be judge and jury — the courts and the law are there [to decide].
Is there a difference between video footage shown on television, photographs in the newspapers and video reports on the internet?
There’s a huge difference. In the case of television, there’s the editor, sub-editor, news editor, the journalists check and verify their facts, then only the report goes out. If any video has not been verified, they put a disclaimer. CNN does that — they qualify so you know what to expect.
(Pic by miamiamia / sxc.hu) I’m not talking about the Malaysiakini case. The problem with the internet, generally, is someone will take a video of something and then just upload it. Nobody can establish or defend the authenticity of the video, the image or the audio. It’s out there and it hurts and causes grief to someone. Are people just allowed to walk away, especially if it’s done by irresponsible people?
What about the Federal Constitution and the guarantee of freedom of speech?
What’s the issue about freedom of speech?
The Federal Constitution guarantees freedom of expression. There are exceptions where the government can legislate to restrict this freedom; for example, if it’s against national security…
Can you shout fire in a theatre? You can’t. It’s an offence.
Freedom of speech in the Federal Constitution is subject to whatever law that has been passed.
But the restrictions on this freedom are only in relation to certain exceptions — national security, public order, public morality, friendly relations with other countries…
And the law. Whatever Parliament has enacted.
According to the constitution, Parliament can only enact restrictions in accordance with specific exceptions.
I’m not an expert on constitutional law, so I don’t know. I have to go by the legislation. I would like to believe that Parliament would not have legislated anything contrary to the Federal Constitution. Again, let the courts decide.
There were reports that the MCMC asked the service providers to block Malaysia Today [last year]. Is that correct?
That is on a [specific] investigation, so I can’t really say. What I said to the press at the time was we believe that we were well within our powers under Sections 211 and 233 to take action because there were comments made which were offensive.
So the MCMC has the power to ask the service providers to block websites?
To take preventive action. Could be anything, it’s not just blocking. We could ask the site owner to take it down. And in many cases, actually, site owners do take it down.
Since existing laws apply on the internet, should the MCMC be focusing on offensive comments and things like that?
Well, Parliament passed the law. I have to do my job. If there’s a section here that says there’s an offence, does that mean I don’t take action? If someone does something which is in contravention [of] this law, the [Communications and] Multimedia Act makes it mandatory to take action. I have no choice in this matter.
There are things that people have done, like scams, spam, fraud — they’re also part of what we need to do.
[The MCMC] was never intended to [police the internet]. Never. That’s why the whole act is based on the principle of industry and user self-regulation. Our job is not to go catch people, we don’t catch people. We go and investigate and then once we’ve investigated, we submit the papers to the Attorney-General.
What about censorship of the internet?
The Act (under Section 3) says nothing in this Act shall be construed to permit the censorship of the internet. Read that very carefully. What does that mean? In the same Act, Sections 211 and 233 (on the offence of providing offensive content) exist. Basically, the Act says if I take any action under 211 and 233, it shall not be construed as censoring.
Or it could mean that if you take any action under 211 and 233, you cannot [do anything that amounts] to censorship?
No, no. I don’t think so. [The Act says], “Nothing in this act shall be construed as permitting the censorship of the internet.” So, if you read Section 211, you would think 211 means you can censor. Actually, you’re not [censoring]. Sections 211 and 233 mean you’re taking regulatory enforcement action. Otherwise why have 211 and 233?
(Pic by Winterling / Dreamstime)Does having Section 3(3) mean anything you do on the internet is untouchable? Cannot be also, kan?
Some say that the online media changed the landscape of the last general election and precipitated a shift away from the Barisan Nasional. Do you think the MCMC can be used or is being used to prevent such a shift, as in the last election?
To be honest, I don’t understand the question. Sincerely, I don’t understand the question. Because how can we be used?
Why do we tell people to take things down or don’t do this or don’t do that? Because we think an offence has been committed. We tell people if an offence has been committed, or if it’s offensive, please take it down. We are entrusted with enforcing the law even if all we can do is say, “Please take it down because someone has reported that this is offensive.”
Do you think the online media has a role to play?
I think the online media has a great role to play. It has a great and positive role to play. I sincerely believe in the power or strength of the new media, it’s a wonderful thing. But like anything, there’s always those who will abuse it and those who will misuse it. What we’ve been trying to promote for some time now is positive use of the online media.
Some of the comments I see online are very immature. Not all, some. Some cannot string a sentence without an expletive in between.
Shouldn’t people still be allowed to discuss?
Discussion is fine but if all that’s being said is a bunch of four-letter words, where’s the discussion?
People say ignorance breeds distrust. Maybe Malaysians have not had the chance to discourse and dialogue with each other, and now we’re just starting.
I am a big believer in discourse and dialogue, but do it civilly. Do it with civility.
[Many people are asking], how can a press conference (Home Minister Hishammuddin Hussein’s on 19 Oct 2009) be offensive? Is it possible for a minister to be annoying?
I can’t speak about anything that’s specific to the [Malaysiakini] case. All I can say is that it’s not all what it seems; we have the evidence. Of course, it’s up to the Attorney-General to decide whether the evidence we have is sufficient or not.
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Azizi Khan says
So let me get this straight. If someone complains about a website or deems it offensive, then MCMC will “persuade” the site owners to comply.
By this logic, reporting on the cow incident was more offensive than the actual act so MCMC jumped into action to ensure justice was served.
Let’s take [a look] at this website: http://putrajayacity.olx.com.my/lembu-untuk-dijual-lembu-dr-ladang-korban-aqiqah-kenduri-kahwin-majlis-dll-putrajaya-iid-38280273
Apparently in this age of information technology, we can now pick out cows to be slaughtered.
But my Hindu friends are offended with this site and I am offended along with them because this site does not respect “racial sensitivities”.
Want more? I have more: http://majlis-korban.blogspot.com/2008/12/zati-dan-mama.html This one actually shows the gruesome act.
So can we now have MCMC unleashed on the party for “national unity”‘s sake? Or these type of requests must be channeled through the local Umno branch or the Home Minister? After all, with Indian Malaysians being the “anak emas” of BN, we cannot AFFORD to insult them for 1Malaysia’s sake now, can we? 🙂
(The Nut Graph perhaps can make a proxy complaint on my behalf because I live in Sydney, and I doubt the NSW police would want to accept a report. They actually spend time catching criminals.)
Moral of the story just in case MCMC doesn’t get it: you either censor the internet or you don’t. On the token, I would like to thank you, COO of MCMC, for taking his time to provide us with this entertaining interview.
Nicholas Aw says
The BN/Umno government is now aware that the internet has become a powerful tool. They were “victims” to the power of the bloggers and online news portals, to the extent of losing five states and [being deprived] of a two-third majority in Parliament.
The MCMC as an independent body (really independent or only on paper?) should focus on enforcing the laws empowered upon them, but should not practise double standards. I believe it is the current practice that the MCMC takes orders from its political masters, and therefore it is not really an independent commission as even the powers to prosecute lie in the hands of the Attorney General. This is likened to a dog that is only allowed to bark but not bite.
It has now become a borderless world where the assimilation of information has to be done by discerning rakyat. The MCMC should instead focus on taking action against people who post sensitive information which cannot be substantiated. It should also take action against Internet Service Providers (ISPs) that shortchange the people, such as TM-Streamyx, which charges exorbitant rates but provides lousy service. A good example is in its mailbox size allocation of about 3mb, which is ridiculous since [mail providers such as] Hotmail and Gmail give an immensely huge mailbox free-of-charge.
So the MCMC should act upon this. Please do not be like the police who say, “No report, so we can’t act on it.”
What a load of crap. Using legalese to hide their true intentions, and hardly answering any question properly.
By the way, most websites and forums have moderators that moderate comments. We don’t need a moral guardian to shield us from nonsense.
Alan S TAN says
I know this guy. I would have tea with him any evening. By my take, this bugger is caught between a rock and a hard place. Not an enviable position. Good luck Shahril.
It is better sometimes to let sleeping dogs lie. In web video, the shelf-life isn’t very long and if it’s not porn, there’s little traction with the viewing public. In any event, viewership is low with web video. Just look at the numbers on TheStaronline.tv — in the mere lower hundreds. If one had tracked the cowhead video on Malaysiakini.tv it was around 70,000 hits on the day Malaysiakini.com wrote about the MCMC demand to take down the videos. Within 3 days the number doubled. It now stands at about 214,000+, but it is so deep in the inside pages, you’d have to be determined to locate it … unless there is reason to look for the video. And the ‘Hisham: Don’t blame cow-head protesters’ video isn’t ‘popular’ at all with only 37,000+ views.
And the numbers I wager will remain this way, until or if the investigations continue to the next level and there is renewed interest and the number of viewers for each video will jump again.
So sometimes it’s better to let sleeping dogs lie. And also it is always better when people who have a better understanding of Internet content run the relevant ministry. Better also to have people who can give advice rather than just act at the crack of a whip.