BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
FORTY-SIX people are facing possible imprisonment and fines for sending online messaging to others. Through tweets, SMS, WhatsApp, blogs and the like. Cartoonists, politicians, activists and the like have all been hauled up.
This is under section 233(1)(a) of the Communications and Multimedia Act 1998. It is a crime to send a public electronic message that is obscene, indecent, false, menacing or offensive with intent to annoy, abuse, threaten or harass another person. The offender can be jailed for up to one year or fined RM50,000 or both; as well as a further fine of RM1,000 for every day the offence is continued after conviction.
How really can you measure whether or not a message is annoying or menacing? And who decides? These terms are not defined. Nor any criteria spelt out to guide people.
The absurdity of this provision can be seen in a recent case in England under a similar provision.
A frustrated traveller wrote a cryptic tweet to his girlfriend when his flight to meet her was cancelled. The message read: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!”
The airport authorities thought this message was not credible but notified the police anyway. He was arrested and charged with “sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character” – under UK’s Communications Act 2003. He was convicted and lost his job.
This caused an uproar. All manner of people rallied to protest. Thousands of twitter users reposted the “offensive” tweet.
Ultimately, the High Court ruled that “a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside this provision (of the 2003 Act)”. The “tweet”, hence, did not constitute or include a message of a menacing character.
Counsel argued aloud whether Shakespeare would be prosecuted for tweeting “The first thing we do, let’s kill all the lawyers”? (Henry VI).
Significantly, the Indian Supreme Court has recently ruled as unconstitutional an identical provision in their law. On four grounds.
Ground 1: Taking away the constitutional right to free speech can only be justified on grounds specified in the Constitution – such as disruption of public order or morality. This means that the tweet or message must incite some action likely to lead to public disorder. But the law makes all online conversations an offence if it may harass, annoy, abuse, or threaten. This could include mere discussion or advocacy of ideas. This overreach violates the Constitution.
Ground 2: The section is vague as it does not define what may or may not constitute an offence. What constitutes the intent to cause annoyance, abuse?
Neither is there clear guidance for citizens or authorities and courts. Virtually any opinion on any subject can be covered by the law. Authorities can act in a discriminatory or arbitrary way. This is an insidious form of censorship that stultifies creative thinking.
It is trite that a law which creates an offence that is vague must be struck down as arbitrary and unreasonable. And ultimately unconstitutional.
Ground 3: The section is too broad. It casts a wide net to catch a variety of acts ranging from innocent dissemination of information through the internet (which some may consider annoying or an insult) to incitement. How can satire or making fun of public figures or institutions amount to a crime? It may create public odium but this can hardly be equated with public disorder – ruled Justice Ariff Yusof in Sepakat Efektif v Minister of Home Affairs (2015).
Its use by the authorities chills free speech. This renders it unconstitutional.
Ground 4: The section is out of sync with the objective of the Act. Our CMA is to promote the wider use of multimedia information and to promote the multimedia industry. It is not intended to impair the freedom to use this medium; nor curtail the right to free speech. The Act states explicitly that it does not permit the censorship of the internet. Criminalising the transmission of online information defeats this objective; or is an unnecessarily excessive measure. This, in law, fails the proportionality test and is unconstitutional.
The pending court prosecutions under this law are being assailed as unconstitutional on similar grounds.
Courts in other jurisdictions say that – in the era of social media – the law should be tolerant of satirical, iconoclastic, rude and even distasteful opinion about serious and trivial matters. Else it could impair irreparably freedom of expression – ranging right across from the press to the foul-mouthed blogger.
The normal law on defamation and prosecution for traditional criminal offences remains. But criminalising online conversations in all situations is quite another matter.
Pray then for an enlightened breeze to waft through to our judges as they mull over the reach of criminal law to these new technologies.
Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKAM.