Defacto law minister, Datuk Seri Nazri Aziz (a lawyer by training) who declared war against bloggers knows that the war against a web master and blog owner like Raja Petra Kamaruddin (RPK) is, at the present moment, difficult (without enabling legislation).

That is precisely why he said that “the government was also looking at formulating new laws allowing it to monitor and act against offending bloggers in areas not provided by these legislation”…..

For the likes of RPK who personally writes a mix of truth and fiction on who and who is corrupt, how does a person threatened by his allegations of corruption shut him up?

There are two options: the first is to sue him under civil proceedings for libel/defamation; and the second, to prosecute him for offences under Sedition Act, Penal Code, Multimedia Act 1998.

The main problem that both civil proceedings for libel/defamation and prosecution under Sedition Act, Penal Code, Multimedia Act 1998 pose is that they all implicate a public trial to which an alleged offender like RPK is entitled to. That is where RPK is saved by his propensity to mix both truth and falsehood – because the moment one nails him on the part that is false he exposes in a public trial the part that is true, which consequences are unacceptable to the corrupt.

[This means that the only option to silence him is to use the Internal Security Act which empowers authorities to incarcerate without public trial. But this option is again not viable because firstly RPK had been detained before under ISA and the experience had, far from deterring him, made him more vociferous instead. Besides it strains credulity to label a big mouth blogger an anti national element and a threat to “internal security”. Such a detention would be widely construed here and abroad as plain repression).

With that option out, one really cannot nail RPK personally for the many allegations of corruption he made against powerful personalities no matter that some parts of allegations are true and others fiction.

What else is left? Yes we can nail him on grounds that he disparaged Islam or the King but then again he was too smart to fall for that because the truth is there is nothing in what he had personally written that was disparaging to either Islam or the King.

I am sure however that what his readers commented could be construed in many occasions as disparaging to either Islam or the King of which he did little moderation or deletion as the more prudent YB Kit in this blog does. This is because his blog has the unenviable distinction of being an un-moderated political blog deliberately calculated to test Pak Lah’s commitment to Freedom of Expression.

This leads to other question – can one hold him vicariously responsible to answer and pay for his readers’ indiscretion and seditious remarks against Islam or the King that RPK does not bother to moderate or delete?

That is the heart of the question, and the lack of clear law (whether civil or criminal law) at this moment that he could actually be held accountable is the main problem that both his detractors and the authorities face today. This is because Internet use and proliferation of blogs are recent phenomena in this country that court decisions have not caught up yet with to make a determination on the position.

Coming back to the two options once again – civil or criminal proceedings.

Take the first : If one sues RPK for damages in civil proceedings for what his readers have commented on corruption, there are immediately two obstacles : (1) the same earlier problem of certain unsavoury details of corrupt behaviour would be disclosed in a public trial; (2) he would say he is not vicariously responsible to answer for his readers’ comments. An employer is vicariously answerable for wrong doings of his employees because employees are under the employer’s control and direction but here lies the difference – the web master/blog owner has no control over the readers’ comments which often may even contradict or refute what the blog owner wrote, never mind that the other salient point that the blog owners know nothing of the reader commenting behind the veil of a fanciful nick/handle or even several different nicks and handles!

This brings us to the second option of criminal proceedings. Now it is here that there is great difficulty to nail an offence on webmaster/blog owner RPK for what ANOTHER person (the reader/commenter) – unknown even to the webmaster/blog owner – has wrongfully done. In modern criminal law one is punished only for what one has personally done based on principle of responsibility, and not what others have done. Only in olden times under the laws of barbarians the son had to be beheaded for the sins of his father!

This is what Malaysiakini reported of what RPK said after seven hours of interrogation in Dang Wangi police station: (To quote – Raja Petra said that his interrogation was NOT ABOUT his ARTICLES BUT ABOUT COMMENTS (LEFT BY READERS) ; that he was asked to reveal the identity of people who had posted comments on his site. He said that he was shown a list of 12 comments which were attached to the police report made by Umno and wanted to know who the writers were”. “I refuse to talk about the comments… because I would only talk about what I wrote and not what other people wrote”, RPK added….

This is where the police/investigators are in a quandary – RPK refused to divulge the Internet protocol of the readers making the disparaging remarks. How to resolve this? Yes the police could seize two of his personal computers but the important information on readers’ IP is not stored there but overseas in some hidden proxy servers!

Now here’s the crux of the problem: one can’t nail him for making a mix of true and false corruption allegations against others (which he actually did) because in a public trial he would spill the beans on those parts true. At the same time one can’t get him for causing “disharmony, disunity, or feelings of enmity, hatred or ill-will” under the Penal Code and Sedition Act because he did not personally write any disparaging articles against Islam or the King – it was his readers who did whose offensive comments he neither moderated nor deleted! And he would disclose their IP ; and the IP could not be found in his personal computers; and he would not cooperate.

This is only but one recourse left – nail him under the Multimedia Act 1998. There is here again one major problem. To get RPK one has to impute an offence unto him for not moderating and deleting his readers’ offensive comments after they were posted, which he did not bother.

Under what law can one get RPK for this?

The only precedent we had was the earlier one involving Jeff Ooi’s Screenshot. There one reader an obvious TDM’s admirer Ilmran posted in Screenshot “‘Shoot this Gunasegaram for good’ because theSun and Nexnews Group Executive Editor P. Gunasegaram had earlier challenged TDM to 27 or 29 questions!

The matter was settled by mediation resulting in an apology from both Ilmran and Jeff to Gunasegaram with an advisory from the Communications and Multimedia Content Forum Complaints Bureau pursuant to the Mediation Results set forth on August 29, 2006

The advisory declared, “Any comments posted on this blog that are obscene, blasphemous, racial or overtly threatening, including the use of partial words or phrases where the intent is clearly offensive, will be removed immediately by the host. Such comment could also render the person posting them liable to legal action or prosecution.

RPK did not observe advisory from the Communications and Multimedia Content Forum Complaints Bureau. Is that breaking the law or committing an offence under the Multimedia Act 1998?

Answer is likely “ no” . An advisory albeit from the Communications and Multimedia Content Forum Complaints Bureau is at best as the word suggests “an advice” and not mandatory law under Multimedia Act 1998.

Short of sending in under Internal security Act or making him accountable for his allegations of corruption, which has already been explained earlier to be not feasible or viable options, RPK has committed no offence under the Penal Code or the Sedition Act or the Multimedia Act 1998 because the ones that made disparaging remarks of Islam and the King are not him but his readers for whom he is personally not accountable in criminal law – neither did his apparent breach of the advisory from the Communications and Multimedia Content Forum Complaints Bureau constitute an offence under the Multimedia Act 1998 because an advisory, as the name suggests, is not law.

RPK for these reasons is untouchable by any criminal law prosecution and that is why he has the gall to thank UMNO by saying, “Thanks should also be given to Umno the ruling party […] my meagre 2.2 to 2.4 million hits are now 5 million because of the police report,” he told the BBC correspondent in Kuala Lumpur.

They now have to scurry back to the drawing board of the Attorney General’s office to draft a new law to address this specific problem of a blog owner escaping punishment for what offensive remarks his readers posted that blog owner disd not moderate or delete!

Dawsheng asked if enacting new laws to curb the effects of an unmoderated blog like RPK’s Malaysia Today would go against the Bill of Guarantee signed for Multimedia Super Corridor?

The guarantee is for freedom of internet and freedom of expression within but even the international community and liberal voices in progressive jurisdictions would go that far to say that Freedom here may be translated into “absolute” freedom and license to spread falsehoods and harm others’ reputation and careers by defaming them via the Internet.

It has always been the case that even in progressive societies the quest is not for one desirable principle of Freedom of Speech only but also the freedom to be protected from harm of being unjustifiably defamed out of malice rather than fair comment!

Hence to make new laws to seek such a “balance” of the imperatives of Freedom of Speech against the Freedom to be protected from calumny of slander, libel and defamation may not necessarily be construed as a breach of Bill of Guarantee.

Besides, the present bunch of guys up there are more interested in what feathers their present nest than the past interest of Tun Dr Mahathir’s pet projects, whether MSC and Bills of Guarantee or Proton, Labuan offshore Centre, the Crooked Bridge to S’pore etc

So I think they would try make the laws but such laws will only have deterrent value to an extent but will not have the “teeth” to bite ie enforced effectively.

For the Internet, Blogs, postings made under anonymity and IP data stored in overseas servers pose very unique challenge and technical obstacle to any authority whether here (as they found in RPK) or in other more progressive western jurisdictions.

Even if you have such laws there is much difficulties to get tangible admissible evidence to satisfy the demands of legal due process in courts: to go all the way is such a protracted and costly process, that it is simply not worth the while from the practical stand point!

For reasons of which the drift in progressive jurisdictions is necessarily a decreasing emphasis on enforcing usual laws on defamation/libel that awards monetary compensation to those innocently victimized by libel in blogs or prosecution by criminal law against irresponsible bloggers – not because the laws are no more important or the need to protect the innocent against spurious allegations posted on the Net is no more relevant or desired but it is because of difficulty of enforcement due to difficulty or costliness of tracing the source and procuring evidence.

That is also why increasingly the emphasis is on the rights of response or reply by the individuals who were defamed on the very forum or even elsewhere to correct and dispel the offending allegation.

Meanwhile there is really little one can do to the likes of RPK who knows the score and the game of how to harness and leverage on the Internet. Round One of Mike Tyson versus RPK would go to RPK because Mike Tyson does not understand the unique challenges posed by Internet and that is way using hackneyed ways like raising Islam and King being disparaged by commenters against 3rd party like RPK only serves harassment value but has no “bite” in real terms of prosecuting him.

Police understands this : that is why the interrogators wasted 8 hours trying to get the IPs of the commenters from him in vain!

Yes, the best way to silence RPK and bloggers is still resorting to the Internal Security Act as what Undergrad2 mentioned but as I said ISA is no more in vogue and fashion to deal with Cyber dissidents who are viewed by readers/public as champions to expose corruption. By no means can a cyber dissident be considered an anti national element whether Communist, Triad leaders or Jemiah Islamiya that the draconian ISA is supposed to be used against!

To crack down on likes of RPK by OSA is then like seeking to hammer a small gnat that inflicts an itch that doesn’t go away with a huge mallet/sledger where the end result does not justify the means : one’s image is straightaway dealt a blow from domestic civil socioeties and opposition not to mention the international furore from Amnesty International and Transparency International etc crying “repression” and ranking Malaysia several notches again down their scale whilst meanwhile RPK in Kamunting will have more time to read and write and doing same damage though on a greater scale unimpeded with help from his ten servers overseas.

The better – and more practical way – is to tempt RPK with untold riches, UMNO’s privatised contracts, get him on their side and get a mouth piece like him to stop the unrelenting pressure to expose the BN’s bigwigs and instead persuade him by carrot to write more exposing those in the Opposition parties, how in spite of rhetorics for example so and so in DAp is making money or so in so in PKR is a hypocrite or so and so in PAS in the Kelantan State Govt is awarding timber and land to businessmen for monetary rewards. I am sure RPK is competent to get a few truths here and there and then extrapolate them big way to show Opposition is in same boat as those in BN except smaller scale since Opposition has not yert the hand on the levers of power to award Contracts big way!

Here again main obstacle is RPK’s integrity. He may not want to play ball.

Then again it is the tenet of principle amongst the “thieves” [to borrow Godfather’s favourite expression] that everyone can be bought at a price. The question is as always how much.

Some you have to pay a lot because the integrity/principle is very high up there but it still can be bought but you have to pay substantially more. Others less principled the price is cheaper.

Moral of the story – if you want to get rich fast and be bought : be a clever cyber gnat like RPK, have your sources, create alot of discomfort amongst powers to be but make sure they cannot latch unto any law to nail you but have to pay you off instead to silence you or work fior them against the Opposition by some lucrative contracts, packaged with datukship and other privileges symbolic of success in our feudal society!