As with Section 114A, website hosts and FB page owners can be held liable
Particularly thorny are comments left by others on your portal
BY the time you read this article, the Sedition (Amendment) Bill 2015 – which seeks to amend the Sedition Act 1948 – will be debated in Parliament. The Bill is now published on the Parliament of Malaysia’s website. Click here to download a copy.
The Najib Administration is seeking to update the 1948 Act to now cover electronic publications, and this article will focus on how these amendments may affect the netizens of Malaysia, and website operators in particular.
The purpose of introducing the amendments is stated in the Explanatory Statement of the Bill.
On the eve of Malaysia Day 2011, Malaysian Prime Minister Najib Razak pledged watershed changes to enhance the parliamentary democracy system in Malaysia. This pledge was reiterated in July 2012 and a decision was made to repeal the Sedition Act 1948.
“However, events since that date have demonstrated the continued relevance of the Sedition Act 1948 in tandem with recognition for the need for enhanced safeguards against its misuse to stem legitimate criticism of Government and discussion of issues of concern to Malaysians,” the explanatory statement reads.
“Among the issues of concern are the increasingly harmful and malicious comments, postings and publications that jeopardise that most valued ideals of Malaysia – tolerance and racial and religious harmony in a multiracial, multireligious and multicultural nation.
“Even more alarming are calls for the secession of States in the Federation of Malaysia established by the consensus of the peoples of Malaysia and unwarranted attacks against the sovereign institutions of Malaysia, the Yang di-Pertuan Agong and the Rulers of the States.
“It is against this background that the Government has decided to retain the Sedition Act 1948 (‘Act 15’) at this time with the addition of enhanced measures and penalties to deal with the threats against peace, public order and the security of Malaysia, in particular through the irresponsible misuse of social media platforms and other communication devices to spread divisiveness and to insult the race, religion, culture, etc. of particular groups of Malaysians without regard for the consequences,” it says.
The definition of seditious tendency will be amended. It will no longer be seditious to “bring into hatred or contempt or to excite disaffection against any Government, administration of Justice (our Courts).
It will be seditious to excite the secession of a State from Malaysia. It is seditious to insult our Rulers, and to promote feelings of ill will and hostility between different races or classes of the population of Malaysia and, with the new amendments, between persons or groups of persons on the grounds of religion.
The Sedition (Amendment) Bill 2015 creates liability to website operators (I use this term loosely as the Bill uses the words ‘any person’ and thus may include owner, host, editor and subeditor) such as online forums, online news portals, and even Facebook Page/ Group owners.
Sections 3 and 4 of the Bill introduce the words “caused to be published.” Under the newly amended Section 4(1)(c) of the Sedition Act 1948, a person who, among others, publishes or caused to be published any seditious publication is guilty of an offence.
The punishment is now “a term not less than three years but not exceeding seven years.” Previously, it was not exceeding three years and a fine.
So what does “caused to be published” here mean? It seems to cover a website operator who allows a comment to be published on his website (especially in the case where comments are moderated). This also covers a comment or a posting published on a Facebook page.
Further, pursuant to Section 114A of the Evidence Act 1950, the owner, host, administrator, editor or a subeditor of the website is the publisher of that comment – notwithstanding that such person is not the author of such a comment (unless the contrary is proven).
If the offence involves a publication of a seditious comment under the new Section 4(1A) – that is, published or ‘caused to be published’ any seditious comments which caused bodily injury or damage to property – the Public Prosecutor has a right not to allow bail. Such a person will languish in jail until his trial is over.
Further, the new Section 10(5) of the Sedition Act 1948 compels a person who knowingly has in his possession, power or control a prohibited publication by electronic means, shall remove or cause to be removed, such publication – failing which he shall be liable to a fine not exceeding RM500,000 (US$137,000) or imprisonment not exceeding three years, or both.
However, there are exceptions for a website operator if he can prove that the seditious publication was done:
Without his authority, consent and knowledge and without any want of due care or caution on his part, or
That he did not know and had no reasonable grounds to believe that the publication had a seditious tendency.
The first exception will not be applicable to a website operator who moderates comments because publication of a comment was done by his authority, consent and knowledge when he approved the comment.
It would however be applicable to an unmoderated website but such an operator must show that due care and caution had been taken.
Nevertheless, the second exception above will be of assistance to a website operator who moderates comments. However, it is difficult to determine what amounts to seditious nowadays (we need a compendium of sedition statements!).
A Sessions Court Judge, on the application by the Public Prosecutor, can make an order to prohibit the making or circulation of certain sedition publications (that are likely to lead to bodily injury, damage to property, promote feelings of ill will, etc., as per the new Section 10(1)).
Any person making or circulating the prohibited publication shall remove or caused to be removed that publication, or be prohibited from accessing any electronic device.
Any person who fails to do so shall be guilty to a fine not exceeding RM500,000 or to imprisonment not exceeding three years, or both.
If the person making or circulating the seditious publication by electronic means cannot be identified, a Sessions Court Judge can direct that such publication be blocked (under the new Section 10A).
[Note: This article is subject to amendments in the event that there are new facts or clarifications from the First Meeting of the Third Session of the 13th Parliament (2015)].
Foong Cheng Leong is a blogger pretending to be a lawyer, and a lawyer pretending to be a blogger. He blogs at foongchengleong.com, and tweets at @xescx and @FCLCo.
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