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Law - Offences in cyberspace

Many have the wrong perception that the Internet allows anyone to say anything with impunity. Where the person referred to is aggrieved, the legal framework allows a civil claim to be made or prosecution to be instituted.

Recent events involving civil litigation as well as prosecution against bloggers and others using the Internet, emphasised the point that such persons are not unaccountable nor enjoy immunity from the law.

What the outcome will be depends on the factual matrix of each case. But it does help to clear up the wrong perception of many that the Internet allows anyone to say anything and everything with impunity.

Such a wrong perception has been created by statements made in part and sometimes by persons in authority due to a misunderstanding of section 3(3) of the Communications and Multimedia Act 1998 which provides that “nothing in this Act shall be construed as permitting a censorship of the Internet”.

This provision disallows censorship but does not say that anything can be published with impunity. Even when there is no censorship, the publisher is always responsible for what has been published.

Civil wrongs

Just like in any other situation, there could be a variety of civil wrongs that are disclosed when communicating through the Internet. What is conveyed or posted could be defamatory, an infringement of copyright or a disclosure which is in breach of a confidential obligation.

If a person is defamed by reason of content so conveyed or posted, such a person is entitled to seek relief like anyone else. This is because derogatory imputations are conveyed to those who have received the message and read it.

Similarly, where the content constitutes infringement of copyright, it would be up to the person whose copyright is breached to take the necessary action.

Some sites say that their content can be freely taken by anyone who so wishes. This can be deceptive in terms of the consequences that can follow. This is because it would only be safe to use such content if the owner of the site itself owns the copyright in such content.

Where the host does not own the copyright, then such a person has no right to permit others to copy what he does not own in the first place. In such cases liability to the true owner remains unimpaired.

Where confidential information is disclosed, the person obliged not to do so would have committed a breach. Once confidentiality is breached, the quality of confidentiality is lost. Those who thereafter receive and pass the information around would not ordinarily be committing a wrong.

Offences

Statements made and conveyed through the Internet can also be the subject of prosecution as an offence. Thus the law specifically allows action to be taken not only for defamation but also sedition or breach of official secrecy, among others.

In addition to the ordinarily known offences, the Act specifically makes it an offence to provide offensive content. Section 211 (1) states that “no content application service provider, or other person using a content application service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.”

However, it will be observed that the section in question refers to content application service providers or other persons using content application services. Application service provider refers to a person who provides one or more network services.

A network service provider in this context means a person who provides a service for carrying communications by means of guided and/or unguided electromagnetic radiation.

Self-regulation

Apart from creating offences where indecent, obscene, false, menacing or offensive content is involved, the Act also provides for the designation of an industry body to be a content forum. In full it is known as The Communications and Multimedia Content Forum of Malaysia.

Related to this there is the Malaysian Communications and Multimedia Content Code referred to in brief as the Content Code which contains detailed procedures for regulating offensive and indecent content.

It contains guidelines on content as well as provisions for the administration of the code, public education and consumer protection. The guidelines provided in the code covered advertisements, broadcasting, online dealings and audio text hosting.

To deal with such content, the code recognises the content forum has a Complaints Bureau which exists pursuant to the by-laws of the Content Forum.

The Complaints Bureau can inquire into complaints and issue a written reprimand, impose a fine or require removal of the content or cessation of the offending content.

Where the offensive material does not constitute an offence or is not a civil wrong, or being a civil wrong represents a scenario where the offended person does not wish to resort to litigation, the Complaints Bureau of the Content Forum would be the body to resort to.

In conclusion, it can be seen that the activities that take place in the sphere of Internet can attract consequences for those involved.

Those engaged in wrongdoing can be exposed to civil consequences and criminal and statutory sanctions. In addition, there is the facility of the Complaints Bureau of the Content Forum.

Even though the Content Forum, through the Complaints Bureau, can only enforce its decisions against member organisations which include broadcasters and content application service providers or those using the content application service, it can refer the offending party to the Communications and Multimedia Commission for further action.

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