THE expression “media law” is born out of convenience. Just as the term “media” is used inclusively to refer to both the old (print) media as well as the new (digital) media, likewise, the expression “media law” refers to a mosaic of statutes (many of which, in our local context, are so obviously antiquated) and a cluttered and growing body of common law principles (which the legal profession refers to as “case law”).
Apart from codes of conduct and ethics for media professionals, the expression “media law” spans fundamental concepts, such as “the freedom of the press” a wide range of ordinary laws covering defamation (civil and criminal), sedition, contempt of court (civil and criminal), blasphemy, copyright, plagiarism, privacy, confidentiality and censorship. Broadcasting, cinematography, and advertising are also part and parcel of media law although they tend to be sidelined or forgotten when seminars and discourses are being held on media law.
The question whether the media in Malaysia is free or not (and if free, “how free”) is more often than not met with a negative answer. The 2014 World Press Freedom Index by “Reporters Without Borders”, which shows Malaysia’s present ranking at 147th place out of 180 countries, is invariably pointed out as evidence of such lack of freedom. The Malaysian government consistently maintains that the local press is free, but within limits and constraints imposed by law.
Press freedom in Malaysia is guaranteed in Article 10 Clause (1) of the Federal Constitution, which states that “Every citizen has the right to freedom of speech and expression”, but that right is “subject to Clauses (2), (3) and (4)”. The right is given only to citizens, and it is not absolute but subject to certain well-defined restrictions, including the security of the Federation, public order, morality, protecting the privileges of Parliament or State Assembly, contempt, defamation, incitement to any offence and sedition. In Public Prosecutor v Pung Chen Choon (1993), the Supreme Court held “The Malaysian press is not as free as the press in India, England or the United States of America, and cases from these jurisdictions are of little relevance”.
Malaysian journalists and social media activists should remember that whilst they are free to write what they wish, they are always subject to these restrictions and limitations. As long as Article 10 remains in force, so do the limitations and restrictions.
The Printing Presses and Publications Act 1984 (PPPA) is an updated version of the earlier Printing Presses Act 1948 and the Control of Imported Publications Act 1958. As the law was originally enacted for the print media, many quarters question whether it is still relevant today, after the media has gone digital? The correct answer to that is whilst it is true that the licensing and permit requirement cannot apply to blogs and social media, Section 8A of the act (which criminalises the publication of false news) is still relevant and applies to the new media.
New media journalists should take note that whilst they need not comply with the PPPA, they are, nevertheless, subjected to the Communications and Multimedia Act 1998 (CMA), especially Section 211 (prohibition on offensive content) and Section 233 (improper use of network facilities or network service).
On July 27, the Malaysian Communications and Multimedia Commission (MCMC) blocked access to the Sarawak Report portal under these two provisions of the law. These actions by the MCMC give new meaning to Section 3(3) of the CMA, which states that “Nothing in this Act shall be construed as permitting the censorship of the Internet”, as well as MSC Bill of Guarantees, which states “No. 7. Ensure no censorship of the Internet”.
Aside from these constraints and limitations, media professionals in this country encounter two other problems – one, many of our existing statutes are antiquated; and two, our continued dependence on common law principles in many aspects of our media law.
Our law of defamation is virtually obsolete. Canada has long recognised the defence of responsible journalism, whilst the United Kingdom had for a long time recognised the defence of innocent dissemination (Defamation Act 1996) and recently a new defence of “truth, honest opinion and publication on a matter of public interest” (Defamation Act 2013). The United States had given immunity or protection to Internet Forums (Communications Decency Act 1996), whilst Australia had revamped its defamation law in its Uniform Defamation Act 2005.
Our law on privacy and contempt of court had always been grounded in common law, although we know that in many jurisdictions, these laws are now contained in specific new legislation. Since a substantial portion of our media law is contained in a growing body of case-law which only experienced lawyers can comprehend, the average citizen (and journalist) usually finds it difficult (if not almost impossible) to differentiate between defamation, sedition and contempt, on the one hand, and fair comment, humour, parody and satire, on the other.
The writer formerly served the Attorney-General’s Chambers before he left for private practice, the corporate sector and then academia