Legal niceties aside, what we would really face is a composite trouble of political correctness and business expediency. Which way to lean? That would be a difficult one for msc companies to work out.

Having regard to the overarching provisions of section 3(3), the CMA is dedicated to protect the sanctity of Internet Freedom leaving it to (1) domestic laws (Penal Code or ordinary civil law) to punish its abuse by sedition and libel (2) MCMC acting on provisions of CMA to punish and prevent cyber crimes like hacking etc. This implies neither CMA nor MCMC should by themselves operate to undermine Internet Freedom per se by blocking a predominantly political site like MalaysiaToday.

Regrading this point about privity of contractual relations that subsist only between hosting company and the government raised by you, it would be MSC Companies’ interest to ensure that the regulatory and political climate is free as far as Internet freedom goes in relation to its users and hence the government as promisor and guarantor of that freedom to MSC’sa companies should abide by its commitment or else the government loses credibility whether one is talking of MSC or the various Corridors under 9MP!

“zak_hammaad Says:

Yesterday at 23: 57.04
The MSC Bill of Guarantees is void and not applicable when someone violates national stability and provokes endless libellous, slanderous and defamatory material and comments.”

Only a nuthead would make statements like this!”

You seem undergrad, only a dimwit would state something which is totally untrue, moreso when there are no “national stability” issues has ever been proven in a court of law as a result of RPK’s postings in his personal blog.

“Ichk and Undergrad2, you both have shown your inability to discuss or justify your view-points here. You seem to get self-gratification from cheap name-calling. Provide something substantial and I may entertain you in the future.”

If you had the brains to comprehend what I wrote, the justification is that the government has broken its own national commitment in ensuring no censorship in cyberspace and MCMC has acted inconsistently with this commitment – moreso since Shaziman Abu Mansor has stated that MCMC “runs on its own”.

MCMC is NOT a political watchdog nor is it the judge and jury of what is right and wrong.

Malaysia Today was blocked for one reason – it is by far the most popular anti-UMNO blog and the most widely read. That ruffles quite a few feathers amongst the UMNO bigwigs and UMNOputra wannabes or mamak worshippers like yourself.

Name-calling is nothing compared to raising THREATS of calling for the ISA on contributors here who point out flaws in your arguments. That is intolerable, more so from a self-proclaimed foreigner.

In short, piss off if you don’t have the brains and data to form an objective argument.

http://www.themalaysianinsider.com/index.php/malaysia/8334-khairy-dr-m-and-raja-petra-on-the-same-page

In conclusion, I would also like to add that there remain hundreds of other blogs and websites that continue to criticise the Government. The commission has not blocked access to those sites. Continue to wonder why.

Adios.

“As part of its commitment to ensure the success of MSC Malaysia Status companies, the Malaysian Government promises to fulfill the following Bill of Guarantees:”

And the 10-point guarantee that follows the opening para are:

“1. Provide a world-class physical and information infrastructure.
2. Allow unrestricted employment of local and foreign knowledge workers.
3. Ensure freedom of ownership by exempting companies with MSC Malaysia Status from local ownership requirements.
4. Give the freedom to source capital globally for MSC Malaysia infrastructure, and the right to borrow funds globally.
5. Provide competitive financial incentives, including no income tax for up to 10 years or an investment tax allowance, and no duties on import of multimedia equipment.
6. Become a regional leader in intellectual property protection and cyberlaws.
7. Ensure no Internet censorship.
8. Provide globally competitive telecommunications tariffs.
9. Tender key MSC Malaysia infrastructure contracts to leading companies willing to use the MSC Malaysia as their regional hub.
10. Provide an effective one-stop agency – the Multimedia Development Corporation.”

The Bill of Guarantee was designed as an attraction for setting up IT companies in malaysia (by malaysians as well as foreigners). It in effect amounts to a promise by our government to provide them with a conducive business, financial and working environment.

However, the 10-point promise in the Bill has no automatic application because IT companies must first procure the requisite MSC status. So whilst the promises are general, the scope of application of the promises is limited, and is specific to MSC status companies only.

So much for an outline on the Bill. Next, the legal status of the Bill.

The Bill is not an Act of Parliament. It is not a piece of statute law; and hence it cannot be enforced as such against the government. It is a mere promise by the government made to MSC status companies. And mere promises do not carry any legal force or effect and they too cannot be enforced in the court of laws.

However, if the promises were acted upon by a party in a way which the law recognises as sufficient to impose a contract, then that party would be able to enforce those promises against the government as contractual obligations. So if say Microsoft Corp, in reliance upon the promises came and invested money here to set up Microsoft Corp Sdn Bhd (MSC), then Microsoft Corp Sdn Bhd (MSC) would be entitle to enjoy the benefits of those promises as a contractual obligation on part of the malaysian government.

It should be apparent by now that the scope of application of the Bill is very narrow and very specific.

With the foregoing as backdrop, lets peek into the issue on internet censorship with regards to blogging.

Blogs are actually a sub-species (or an offshoot) of online discussion forums which began life sometime in the mid-90′s. Both blogsites and discussion forums are interactive sites because visitors are allowed to post their comments and views. However, blogsites were developed more for the individual who wants to share some of his personal info (like photos of his climb to the peak of Himalaya) and views (on say saving the whales) with the net community. Since visitors are allowed to post their comments freely, often blogsites would turn into discussion forums.

Following on from above it can be seen that unless a msc status company is incorporated as a vehicle for operating a blogsite, the individual who owns and maintains the blogsite concerned would not get to enjoy the “No Internet censorhip” promise in the Bill of Guarantee. And if the blogsite owner sets up his own web-server to host his blogsite then for him the whole story would end right here with this note – no “no internet censorhip” promise.

What if the blogsite is hosted in a computer which is owned by a msc status web hosting company? The hosting company has a right to the “No Internet censorhip” promise. This is quite clear. The question is the actual extent of that right. The hosting company may publish its own information online without any fear of censorship but may those customers whose websites the company host do so? Putting it another way, can customers of the hosting company ride on the rights of the hosting company?

The contract (in which the promises in Bill of Guarantee are turned in contractual obligations) is a private legal arrangement between the hosting company and the government. Hence, customers of the hosting company, not being a party to that contract, would have no right to enforce those obligations directly against the government. They can do so only through and in the name of the hosting company. In which case, willingness of the hosting company to cooperate in such enforcement action and to lend it name for the purpose is a matter of paramount import.

Assuming, for the sake of argument, that the hosting company agrees to cooperate. The question whether the right of the hosting company may be extended to customers of the company still remains to be answered.

Unlike the Constitution which would be given a broad and generous interpretation by the courts, the actual meaning of contractual provisions would be gathered strictly from reading the words used and where appropriate (in limited circumstances only) suitable implied meanings may be applied.

A strict literal reading of the promise would yeild a meaning which excludes the possibility of customers enjoying the rights of the hosting company. However, given the general manner in which the promise is worded (i.e. “No Internet censorship”) it may be possible to widen the coverage of this promise to benefit blogsite owners. The basis for this view is derived from looking at the whole objective of the Bill of Guarantee which is to encourage and promote the growth of the IT industry. Employing a restrictive meaning to the “No Internet censorship” promise would be contrary to that objective. In my view the latter construction of the promise is the more probable of the two.

Be that as it may, fortunately the no censorship promise is reflected in the Communications and Multimedia Act 1998 (the CMA). The CMA is about regulating and controlling access to the Internet and the Internet industry. So in order to remove any confusion one may have that the CMA could be applied to censor the Internet, Parliament saw it proper to insert an overriding declaration in section 3(3) to the effect that “[n]othing in this Act shall be construed as permitting the censorship of the Internet.” The CMA has a total of 282 sections and a schedule; and it has also been extended by a number of Rules and Regulations made under it. None of these i.e. the 282 sections (minus section 3(3)), the Schedule and the Rules and Regulations shall be construed as permitting Internet censorhip.

That is also to say, the application of all these 282 sections (minus section 3(3)), the Schedule and the Rules and Regulations is subject to the no Internet censorship declaration in section 3(3). Section 3(3) is therefore an important provision and it is a clear proclamation by the government of its commitment to the “No Internet censorhip” promise made in the 10-point Guarantee.

Section 263 of the CMA is no exception and like the rest of the Act, its application too must be subject to the declaration in section 3(3). Section 263 imposes on licence holders (e.g. ISPs) the duty to prevent the network facilities they own or the network services they provide from being used in the commission of any offence under the laws of Malaysia. The same section also empowers the Commission (a body incorporated under the CMA and charged with the statutory duty to oversee the application and enforcement of the CMA) to issue written request to licence holders for assistance to prevent the commission of offence under the laws of Malaysia, and for preservation of national security.

And Parliament, in enacting that section, must have in its contemplation crimes which are related to or concerning information, whether in its character as a property or as information, purely. Crimes involving or concerning information in the context of CMA would include criminal defamation, theft of personal data, hacking, etc. etc. And so section 263 is primarily a provision for preventing crimes of these nature and for good measure the section is also coupled with the precautionary provision on preservation of national security.

A quick word about preventive provisions for criminal activities. No crime need actually be committed. The preventive provisions would spring to action on suspicion (which to my mind must be based on reasonable grounds) so that the anticipated criminal activity could be foiled before its completion or before its commencement. In the case of an uncompleted criminal act we could (arguably) have an attempt to commit a crime, which by itself is an offence. The preventive measures taken in such cases, I believe, can be justified. However, the same cannot be said of suspected criminal act which has yet to commence. Great care is needed for otherwise the rights of law abiding citizens would be infringed unnecessarily and unlawfully.

Coming now to the main issue: Does section 263 empower the Commission to request ISPs to block the Malaysia Today blogsite?

The Minister for Information in news report appears to have said that the freedom to post information online is subject to and restricted by section 263 and that the Commission has authority under that section to direct ISPs to block an offending site. The decision to block Malaysia Today is, according to the Minister, based on alleged misreporting by the site, which if true could give rise to the offence of criminal defamation.

In my view, the Minister is wrong in several aspects.

First, his observation that Internet freedom (by which I mean freedom from censorship) is subject to section 263 of the CMA is incorrect. The CMA says clearly that “Nothing in [section 263] shall be construed as permitting the censorship of the Internet.” Internet freedom was made paramount by Parliament and section 263 cannot be used or applied in any manner which results in a derogation from that freedom.

Secondly, section 263 does not dress the Commission with an all embracing authority to block a website. The site owner has freedom (section 3(3), CMA) to post information online. But lets say some of those information were posted maliciously by him, of a person, and are factually wrong and so could amount to criminal defamation of that person. Using section 263 to block that site would clearly result in a breach of the site owner’s right under section 3(3) to post his other harmless information online. So the decision to block Malaysia Today using section 263 can be justified only if all the information carried by the site are wrong, and were maliciously posted. The Commission must not ignore section 3(3) of the CMA when applying section 263.

On the subject of hypocrisy, whether or not he would have himself refrained from directing MCMC to block and censor MT had he encountered during his time the likes of RPK and had been target of RPK’s ire and expose, this is of course speculative –
maybe no or maybe or even likely yes.

Having said that, I have no recollection that he had during his watch done a thing like blocking a web site.

Sometime in January 2003, UMNO Youth lodged a police report against Malaysiakini for publishing a letter made by one of its readers under the pen name of Petrof (I think). Petrof ‘s letter was critical of Malays in general as well as the Malaysian government in particular linking Umno Youth with the white supremacist group Ku Klux Klan of the US. (Mahathir then was abroad). There were demands made by police that Malaysiakini disclosed Petrof’s internet protocol but Malaysiakini declined on grounds of journalistic provilege as well as the contents being not seditious. Police seized Malaysiakin’s computers. When TDM returned he asked for a copy of Petrof’s letter. Malaysiakini faxed it to PutraJaya. No action was taken further against the online bulletin. The computers were eventually returned.

Whatever might be said of TDM being hypocritical regarding the sale of sand to S’pore/crooked bridge issues, privatisation vs piratisation, Proton or Judiciary/Rule of law/sacking of judges and other issues, there is, correct me if I were wrong, no example of him reneging on the Bill of Guarantee for Internet Freedom.

Now it seems that the government not only has full discretion to throw whoever it wants to Kamunting under the veil of ISA, it also enjoys the absolute authority to close down whichever site it wants at its whims or fancies.

Regarding Mr. Zak’s comparison of netizens vs. citizens, and his dare to go to the centre of one’s town and start shouting obscenities against one’s object of hate and start throwing accusations, well, I can only say that Najib, Hishamuddin and Ahmad Ismail have gone much farther than that, and they are pretty much safe, sound, alive and kicking as of now.

Yesterday at 23: 57.04
The MSC Bill of Guarantees is void and not applicable when someone violates national stability and provokes endless libellous, slanderous and defamatory material and comments.”

Only a nuthead would make statements like this!

What do you expect from a government which is in its death throes?? An animal in its death throes would lash out at anything that moves.

Goons, don’t be smug thinking you can use this to get DSAI. Be forewarned Najis, this Act could turn out to be a double-edged sword. It could bite you in your rear for Altantuya’s murder.

You don’t have much grey matter between your ears do you?

Prove it in a court of law that RPK has been guilty of libel and slander.

Just because you and some UMNO morons find his articles to be distasteful and you think it is right to censure him – that’s not a legal right and you know it.

“zak_hammaad:Race and religious issues remain a tinderbox in this country. If you are happy to light this tinderbox, I would be more than happy for the ISA to be used on you.”

Piss off, loser. Malaysia does not need the likes of self-declared foreigners like you (which I doubt you are) threatening draconian laws on Malaysians. Kicking you out of Malaysia would be the best solution.

“zak_hammaad:Now I know that you really are stupid. I am as much pro-UMNO as you are!”

Ah, you are a Dr M fanatic who gets a boner when you see his photo, aren’t you?

“zak_hammaad:Nope, the law of the land is the final judge as to what it regards as matters of national security. If you think this is exeggeration on their part, maybe you should look towards our southern neighours; examples have been provided.

Dancing to the whims of “netizens” while the country is in danger is an argument I find most amusing. Do you think citizens should be accorded the same rights and freedoms as netizens? I dare you to go to the centre of your town and start shouting obsenities against your object of hate and start throwing accusations at one and all. I want to see how far you can go.”

You are even more dim than a fading lightbulb in a public toilet.

The issue on hand is that the MSC Bill has been violated and there is NO national security threats except only in your addled mind.

If there is a threat, PROVE it in a court of law. Just because some dimwits like you believe that RPK’s blog is a national threat, it deserves to be censured?

Your dare is as dumb as one can get – all abuses are rightly settled in a court of law of which you have avoided mentioning.

“zak_hammaad:The response to such a scenario is pretty global as no country would tolerate such behaviour. Yet you want bloggers to be accorded exemptions?”

No is exempted from being hauled up to a court of law. If bloggers are making defamatory statements, sue them then.

The fact that the UMNOputras can’t is a clear indication that they don’t have the balls to do so and are afraid that RPK has things up his sleeve to expose them if it graduates into a legal setting.

Who are you to decide what is libel and what is not?

Jeff – TDM is as usual the consummate hypocrite and speaking from both sides of his mouth.

TDM has no compunction in disregarding the water agreement with Singapore when he wanted to unilaterally change the terms.

TDM has no compunction when he wanted to build the crooked bridge and demolish the causeway in breach of the Separation Agreement.

TDM has no compunction when he reneged on the Points of Agreement signed by Daim with Singapore on the resolution of the KTM land, water, etc.

TDM has no compunction when he clobbered CLOB.

TDM has no compunction when he re-drew the Malaysian maps and raised the heckles of all ASEAN members who shared boundaries with Malaysia as suddenly many islands became “Malaysian” overnight.

The list goes on…

Yes, it’s moreso a violent shaking of UMNO than any real support for Pakatan.

>> I can’t prove I am right, but you can’t prove I am wrong also.

Tough internet laws to control bloggers did NOT come into effect during Mahathir’s time. This is the first time such curbs have been used against a non-pornographic website by Malaysian authorities; prior to 2003, this has never been the case.

Mahathir remains a staunch promoter of the MSC Bill. Whatever he wrote in his latest entry of chedet is his opinion that blogs should not be prevented from writing what they want. Obviously I for one disagree with him on this issue as spreading seditious material and lies would be intolerable for any country let alone any individual.

A high court previously ordered RPK to reveal the source for one of his many allegations if indeed he is truthful; he continues to fail to deliver. You cannot claim to have evidence on one hand and refuse to reveal the sources of the evidence on the other, this would be rejected in a court of law. It is a waste of legal resources to entertain every seditious comment a blogger makes without evidence, but the law must take it’s course.

Have a good weekend ya all.

>> I repeat, prove it in a court of law.

Err, prove what? That bloggers must remain sensitive to culture and religion of Malaysia? Are you stupid with all due respect?

Race and religious issues remain a tinderbox in this country. If you are happy to light this tinderbox, I would be more than happy for the ISA to be used on you.

>> It’s not up to the whims and fancies of you or any UMNO dimwit

Now I know that you really are stupid. I am as much pro-UMNO as you are!

>>The Netizens are the final judge of that and will pick and choose accordingly.

Nope, the law of the land is the final judge as to what it regards as matters of national security. If you think this is exeggeration on their part, maybe you should look towards our southern neighours; examples have been provided.

Dancing to the whims of “netizens” while the country is in danger is an argument I find most amusing. Do you think citizens should be accorded the same rights and freedoms as netizens? I dare you to go to the centre of your town and start shouting obsenities against your object of hate and start throwing accusations at one and all. I want to see how far you can go.

The response to such a scenario is pretty global as no country would tolerate such behaviour. Yet you want bloggers to be accorded exemptions?