The malaysian government launched the multimedia supercorridor with a list of promises which was titled as the “Multimedia Super Corridor (MSC) Malaysia 10 Point Bill of Guarantees”? The opening paragraph to the 10 Points Bill of Guarantee were worded as follows:-

“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.