Ahead of Malaysia human right defender and blogger - Charles Hector’s defamation trial on 28-29 June 2011, ARTICLE 19 calls on the Malaysian Court to consider the case in line with international freedom of expression standards.

Given the fundamental importance of the right to freedom of expression, and its recognition in Article 10 of the Malaysian Constitution, ARTICLE 19 urges the Court to ensure that Malaysian defamation law is interpreted, to the extent possible, in a manner that respects Hector’s freedom of expression.

Charles Hector is being sued for defamation at the High Court of Malaya in Shah Alam by the Malaysian subsidiary of Asahi Kosei Japan Co. Ltd, a Japanese electronics company. The defamation case centres around articles Hector posted on his blog in which he raises his concerns about the companies’ treatment of 31 Myanmar migrant workers. His findings were based on research he carried out. The company, which has already obtained an injunction against Hector’s blog posts, is demanding damages of RM10 million (app. US$ 3.2 million).

Although Malaysia neither signed nor ratified the International Covenant on Civil and Political Rights and international standards on defamation are not formally binding on the country, ARTICLE 19 believes the constitutional guarantee of the right to free speech in Malaysia allows wide scope for interpretation.

In particular, ARTICLE 19 calls on the Court to recognise that the burden of proof regarding the falsity of the blog statements should lie with the plaintiff. Furthermore, under international standards, even if a statement of fact on a matter of public concern has been proven to be false, defendants in a defamation law suit should benefit from a defence of ‘ reasonable publication‘ , also known defence of ‘ due diligence’ or ‘ good faith’ . Hence, ARTICLE 19 argues that Hector should not be held liable if it is established that he held a good-faith belief in the truth of his posts.

ARTICLE 19 also believes that given the nature of his blog, Hector should benefit from the privilege of reasonable publication granted in the Defamation Act of Malaysia. Finally, should the Court reject defences and find the statements defamatory, the amount of damages must be assessed in the view of the proportionality.

ARTICLE 19 warns that the award in amount sought by the company could be expected to have a substantial chilling effect on the future exercise of the right to freedom of expression, not only for Hector but for other human rights defenders and media in Malaysia.

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The Malay Mail said on January 27,2011,

Yesterday, Minister in the Prime Minister's Department Datuk Seri Nazri Aziz announced the drawing up of new guidelines, which are to be presented to the public in roadshows nationwide to “make it easier for the public to know what they can and cannot do” online.

Nazri explained the guidelines would provide better understanding of the Sedition Act 1948, Printing Presses and Publications Act (PPPA) 1984 and the MCMC Act 1998.

Malaysian bloggers are not happy about the government's desire to control the online media. The Durian-Dr.Jason Abbott's blog on Southeast Asian issues, describes the situation as an example of the  government's shift towards a more authoritarian style when it comes to controlling dissent online,

In September 2008 prominent blogger Raja Petra Kamaruddin was arrested under the controversial Internal Security Act that allows detention without trial and held for almost two months. In recent weeks the government announced that they were exploring whether to pass amendments to the Printing Presses and Publications Act which requires all publications to apply for an annual permit from the Home Ministry which can be refused, revoked or suspended at the minister’s discretion without judicial review.

In light of recent mass uprisings in Tunisia and Egypt and the role of  online media and social networks in these events, it seems that the Malaysian authorities want to control the horse before it throws off the jockey.

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While many bloggers harked to his call, making him a national hero to some, and even more so when he was apprehended for his actions, Syed now claims he was paid RM4 million (USD1.25 million) over a period of three years to tarnish the credibility of former prime minister, Tun Abdullah Ahmad Badawi, and his administration through his blog.

According to a news report, Syed claimed that the PAS government in Kelantan, a northern state in Malaysia, had paid him to carry out “psychological warfare” to denigrate the ruling coalition, Barisan Nasional (BN), so that PAS remains in power in Kelantan's state assembly.

Due to his assertion, the Malaysian Anti-Corruption Commission (MACC) has begun investigations on the matter. It is unclear as to why Syed has only now revealed that he was paid and the amount involved, but judging from his blog post on the matter, it appears to be regarding alleged “abuse of power” and “breach of trust” by the PAS governance in Kelantan.

While there is nothing wrong in a political party to pay for ‘image building' or ‘branding', the question appears to be where these funds were derived from. In 2009, Syed had served as corporate liaison officer of PMBK, the state's investment corporate arm. In November of that year, he was told that his services were not required any longer.

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Kelantan PAS Security Committee, secretary Major (Rtd) Mohamad Ibrahim, lodged a report on the matter on 8 Feb 2010, after discovering the pictures on the Internet on 6 Feb. Johor police chief, Deputy Comm, Mohd Mokhtar Mohd Shariff confirmed the arrest, according to the news report.

According to another news report, the blogger is currently being held under Section 233 of the Communications and Multimedia Act, which relates to improper use of network facilities or network service to comment, request or suggest in a communication which is obscene, false, offensive, or used to abuse, threaten or harass another person.

If convicted, the blogger faces a maximum one year jail term and/or a maximum fine of RM50,000.

This arrest comes shortly after police charged another blogger for allegedly insulting the late Sultan of Johor, and in the midst of Anwar Ibrahim's second sodomy trial.

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The news report quoted the Malaysian Home Minister as saying:

Let his case be a lesson to others who think they can express themselves openly without worrying about repercussions… He has been arrested and will have to wait for the Attorney-General’s Chambers to decide on the appropriate action to be taken against him… Even if he apologised to the Sultan or the public for making the insult, my ministry and the Malaysian Communications and Multimedia Commission can still take action against him.

The blogger reportedly gave himself up to the police, according to reports on 25 Jan 2010. Following the sudden passing of Sutlan, Khairul Nizam allegedly posted the insulting comment on his blog, for which it is said about 25 police reports were filed against him. Due to this, the Johore police had to establish “a special task force” to investigate the matter.

Since then, Khairul Nizam publicly apologised and withdrew the posting.

In addition to the Home Ministry and the police investigation, the Malaysian Communications and Multimedia Commission (MCMC), a body which regulates the Internet, will also investigate the matter, according to Information, Communication and Culture Minister, Rais Yatim.

The minister was reported to have said:

We need more people who are appreciative of those who have contributed. It is very seldom to find Asians lambasting a former head of state, especially the late Sultan of Johor who was the Yang di-Pertuan Agong.*

During the course of developments on the matter, the two ministries have been conflicted in their approach to the matter. After the initial outcry, Information Communication and Culture Minister Rais Yatim was reported to have said that the government has no intention to take action against Khairul Nizam, as he had realised his mistake and openly apologised for it on his blog.

He later said that the blogger must apologise formally before a court judge who will preside over his case, as well as apologise formally to the Johor royal family. However, the Home Minister has been consistent in that Khairul Nizam needs to be prosecuted, as otherwise,  “…anybody can say anything they like and apologise the next minute and get away with it“.

The blogger was charged on 29 Jan 2010 under Section 233 (1) of the Communications and Multimedia Act 1998, which carries a maximum fine of RM50,000 or one year's jail or both upon conviction. It was reported that Deputy Public Prosecutor, Masri Mohd Daud, proposed bail at RM10,000 with one surety. The blogger's counsel pleaded for a lower surety, and the Sessions Court judge, Zamri Bakar, agreed to reduce bail to RM5,000 with one surety.

Royalists are very much for Khairul Nizam's prosecution, with an Anti-Aduka Taruna campaign taking place on the blogosphere and on Facebook. Former Malaysian Prime Minister, Dr Mahathir Mohamad, said bloggers should stick to the facts and write on a basis of truth, rather than insult people. He was reported to have said:

Bloggers should not unnecessarily do things that are not going to benefit anybody. Why use your blog to insult people?

The most recent development on this was the Home Ministry's announcement that it will continue to monitor blogs and websites touching on the people's sensitivities. According to news reports, Home Minister, Hishammuddin Hussein, said they were now “collecting evidence to bring the culprits to book for touching on sensitivities involving race, religion and the institution of Malay rulers.”

* the Malaysian King

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Dr Zambry was quoted to have said:

Their writings clearly have gone beyond decency, respect and loyalty. They have shown their utter contempt against the Malay rulers and Islam… They have committed sedition and probably treason… these writers have no respect for the constitution and the country.

Although he was reported to have said that “the state government would not let the matter lie quietly”, no details as to what cause of action will be taken.

Meanwhile, member of opposition party, Democratic Action Party (DAP),  Loke Siew Fook, who is believed to be one of the purportedly offending bloggers, has denied that he had written racist posts on his blog. As such, he was reported to have lodged a police recently of this. On his blog, he states:

I wish to deny strongly that neither DAPSY [DAP Socialist Youth] nor I have ever issued any statements that insult Islam or the Royalty. Those are lies spread by certain irresponsible parties out to tarnish the image of the DAP and tried to paint DAP as anti-Islam and anti-Malays.

Furthermore, a news report quoted him as saying:

These are lies spread by irresponsible parties who are out to tarnish the image of the DAP. They are trying to portray the DAP as being anti-Islam and anti-Malay.

He has also stated his innocence on popular Malaysian blog, Rocky's Bru. DAP Party veteran, Lim Kit Siang, echoed the same on his blog:

This is clearly part of the latest gameplan of a master strategy by Umno (member of ruling coalition) to tarnish the image of DAP and DAP leaders as anti-Malay and anti-Islam in a larger political conspiracy to break up and destroy Pakatan Rakyat (opposition coalition).

Meanwile, Prime Minister, Najib Razak, has called for an investigation into the “seditious statements” made. Do bloggers have cause for concern or is it just politics?

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According to the Malaysian Insider, the feasibility study is to be completed by December 2009 and “the results will be handed to a shadowy unit monitoring blogs and websites although the decision on implementation will lie with the National Security Council headed by Prime Minister Datuk Seri Najib Razak.”

The move is has critics and opposition politicians crying foul as it breaches the Multimedia Super Corridor (MSC) Bill of Guarantees. Furthermore, IT specialists have also said the move is “a waste of time”, which then makes the use of public funds in this endeavour questionable.

The Information, Communication and Culture Ministry has called for tenders for this proposed Internet filter. Unsurprisingly, this development comes hot on the heels of the previous proposal of getting bloggers registered.

The Centre for Independent Journalism has stated:

This is a clear violation of the commitment made in the promotion of the Multimedia Super Corridor and the Bill of Guarantees that ensures no censorship of the internet. Any form of control or filtering is a violation of freedom of speech, as enshrined in Article 10 of the Federal Constitution.

…

The real beneficiaries of control of information and expression over the Internet or any other forms of the media, is the ruling party in power. Reports by local and international human rights organizations point to the deliberate attempts by the Barisan Nasional government to target online spaces, which host a range of critical views on governance, transparency, accountability and maladministration. In this regard, any moves to institutionalize filtering will be seen as strengthening the executive's powers in controlling content online.

Opposition veteran, Lim Kit Siang, has stated on his blog:

It is most shocking that Rais [Yatim - the Information, Communication and Culture Minister], who is generally regarded as the most level-headed and liberal of the existing Cabinet Ministers, is spearheading a move which will not only bury the government's pledge to the world of “No Censorship” in the MultiMedia Super Corridor (MSC) Bill of Guarantees announced by Tun Dr. Mahathir in his heyday as Prime Minister, but will be seen as a turnaway from an Open Society and retreat to a Closed Society with all the grave long-term political, economic and nation-building implications.

Of this new move, Din Merican states on his blog:

As a blogger this makes me happy - it's a sign, like the Saturday crack down and ensuing barrage of negative press against Anwar Ibrahim, that we're doing our job well and the corrupt people who run this country are incapable of addresing their fabulous unpopularity except by stifiling dissent and preventing the free flow of information.

And it is well known that Internet filters don't work. The minute one goes up, I along with all my fellow bloggers will teach you how to circumvent the filters in case our sites are deemed to be “undesirable.”

But what will foreign investors think? Especially the technology companies we are trying to woo? Microsoft? Dell? Google?

It will be interesting to see if social networking and viral news-sharing technology will be shut out as well in Malaysia's bid to bar freedom of information. Perhaps the call of the Prime Minister's wife, Datin Paduka Seri Rosmah Mansor, a few days before this development that Malaysians should use the Internet wisely will not be necessary if the Internet filter is imposed.

Update: Information Communication and Culture Minister, Rais Yatim, just clarified that the Internet filter is meant to block pornography, and not a means to curtail freedom of expression. He denied that the proposal is to muzzle bloggers, who are subject to the usual laws of the land.

Update: A day after the announcement, Malaysian Prime Minister, Datuk Seri Najib Tun Razak, has stated that the government will not censor the Internet. He was quoted as saying:

Up till now there is no change in the Government's Internet policy… However, we will discuss this matter.

It is unclear who Prime Minister Najib means by “we”.

Update: The idea for an Internet filter might be (temporarily) scrapped. See this report.

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On June 10th, the central propaganda department issued a notice reminding all the media to report positively on Green Dam, Youth Escort, the filter and spyware to be installed in all PCs sold in China.

Meanwhile, netizens continue to dig out all the flaws in the software and the company's background; Information activists and various organizations on the other hand, have compiled a number of documents and reports on Green Dam. (see Rebecca MacKinnon's list in her blog）.

Given the propaganda department's notice, people were surprised to see that the government's mouthpiece people.com.cn's nationalistic “strong country” forum had created a special page (removed) and criticized the Ministry of Information Industry and Technology for taking the decision without consulting the public. Moreover, a poll in the forum showed that more than 80% of the netizens is against the introduction of the compulsory filter on their PCs.

However, the special topic page only stay online for two days, it was removed today (June 15), together with the poll. Below is a cache image of the page and the poll:

Now that serious criticisms are harmonized, the post 80 generation created a cartoon figure, green dam girl, to consumer and counter attack the Green Dam. How? You can take a look at this one:

More from DANWEI and heciatou.

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However, authorities apparently have no problems with bloggers who identify themselves.

Respected Malaysian blogger, Ahirudin Attan of Rocky's Bru, was reported to have said that the proposal was effectively the government's bid to control what Malaysians were writing online. He was reported to have said:

This violates the Government's no-censorship policy with regards to the Internet.

Ahirudin said the move would merely encourage bloggers to host their blogs overseas. Blogger and activisit, Marina Mahathir, was reported to have said that the Government really should “get real”, as the move “is just going to make Malaysia look ridiculous in the eyes of the world.”

Meanwhile, the Information, Communications and Culture Minister said the proposal was a good idea, although it required indepth study. He noted that bloggers still had to face the existing laws for defamation and sedition. He was further reported to have said:

… we are studying a new Act, the Multimedia Signature Act, which has been in the pipeline the past three years. This Act is expected to support the Communications and Multimedia Act 1998.

This news comes shortly after recent findings that the country has about 500,000 active bloggers, making Malaysia rank among other high-ranking blogging countries like Indonesia and the European Union.

According to Universiti Malaya media department lecturer, Dr Abu Hassan Hasbullah, blogs were one of the key factors that caused the current administration to lose its usual two-thirds majority in the recent elections.

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The sitting on May 7 will be the first with its new legislative head, Mr Zambry Abdul Kadir, leading the proceedings. It is believed that Mr Zambry intends to remove the current legislative assembly speaker, the opposition's Mr V. Sivakumar, who appears to be an obstacle to the National Front's control over the state assembly.

According to news reports, a media notice was sent out by the state Information Department to several media companies recently, informing them of ‘tightened security measures'. It listed out the thirteen media invitees, which included no new media organizations, no bloggers and no foreign press.

To add salt to the injury, state-owned television stations RTM, BernamaTV and private station TV3, which is linked to a component party in the ruling coalition, are allowed to have an additional representative in attendance.

Opposition Parliamentarian, Mr Lim Kit Siang, notes on his blog:

All online media organisations are barred, including Malaysiakini, Malaysian Insider, The NutGraph, Merdeka Review, Therocknews, etc. All foreign agencies and media, whether Reuters, AFP, Associated Press, Bloomberg, Jiji Press, CNN, BBC and Al-Jazeera are also barred.

And a total ban on all bloggers - the quintessence of the new media!

Uninvited media organizations and representatives are barred from entering the state assembly hall, as well as from loitering in the hallways of the building.

New Minister of Information, Communication, Arts and Culture, Mr Rais Yatim, had dinner with fifty of Malaysia's influential bloggers recently. In addition, Mr Zambry had an exclusive online interview with Malaysiakini, Malaysia's first and highly influential online news portal. The bloggers at Mr Rais' dinner and Malaysiakini were not on the invitation list. Ironically, Mr Rais was reported to have said at the dinner:

One of my friends told me that there were no less than 5,000 serious bloggers in the country voicing out their opinions on various issues.

Some of them have even stopped writing for the mainstream media to concentrate on full-time blogging. Among these bloggers are our own children, undergraduate students and lecturers, who form the most critical members of our society.

The Malaysian Insider reports:

This is not the first time media workers have been required to apply for a security pass in advance. It started during the legislature's first sitting last year under Pakatan Rakyat rule.

But the measures have never been so strict.

Opposition veteran, Mr Lim, continues on his blog:

Let me remind Zambry to stop being a “caveman” Mentri Besar of the Flintstones era and wake up to the age of the Internet and the new media.

The media restrictions of the usurper Zambry administration runs contrary to the public pledge of support for “a vibrant, free and informed media” made by the Prime Minister, Datuk Seri Najib Razak in his first week in office.

Most bloggers have taken offence to the media shut down for this state assembly sitting. Damian Yeo states on his blog:

Why and what is the illegitimate state government of Perak is so afraid of? Banning media representative is never a good option. Why is the MB so afraid? Or was he so embarrassed to be scrutinize by the media?

Amethyst's blog states:

So is this what to expect in Perak in the future? No dissent tolerated?

BN should really rethink their policy. The more they try to shut people up, the more vocal they will be and more votes will be lost.

But then again, maybe old dogs cannot learn new tricks.

Activist, Anil Netto, writes:

The Assembly proceedings on 7 May will be closely followed by Malaysians - given the constitutional crisis in the state and the BN attempt to replace the Speaker, who is from the DAP.  Even the seating arrangements in the Assembly could be disputed.

Today, Perak Speaker A Sivakumar said he would meet with the State Secretary to obtain clarification on the media restrictions.

In line with democratic traditions, people have the right to know what’s happening in the Assembly, he said. He is therefore asking all media, including the foreign and internet media, to cover the proceedings on 7 May.

It is unclear how much headway Mr Sivakumar will have in obtaining invitations for new media, bloggers and foreign press at the 7th May sitting, all things considering.

May 3, 2009 update:  It has been reported that Perak State Assembly Speaker, Mr Sivakumar, issued a statement that all media organisations will be allowed to cover the Perak State Assembly proceeding on May 7 after all. Mr Zambry was reported to have claimed that he was not involved in the decision to restrict the media for the May 7 sitting. However, he was reported to have suggested it was made because of space constraints.

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