Regulation of Indecent, Obscene Matters on the Internet

The parents of children who use the public library are aware that some of the children have been visiting adult-oriented Websites. Concerned that some of these sites may contain obscene material, a group of parents complain to the Director of the Library.  As a result, the library purchases and installs software on all library computers blocking access to these sites. Another group of library users claim that this act amounts to censorship of the Internet contrary to what is provided in section 3(3) of the Communications and Multimedia Act 1998.

(i) Do you agree with their argument?

(ii) What are the legal considerations the court should take into account to determine whether the material amounts to “obscenity.”?

(iii) Suggest other methods the library could use to prevent the children from accessing these sites. (Total: 25 marks)

(i) The general rule under s.3(3) of the Communications and Multimedia Act 1998 (CMA) is that nothing in the CMA permits censorship on the internet. Additionally, Bill of Guarantee No.7 provides that the government will not censor the internet.

Based on the facts, only access to websites containing obscene material, were blocked by means of self-regulation, i.e. filtering. Thus, only a portion is blocked. It doesn’t amount to censorship. An example of actual censorship would be like that in China, where access to many websites are blocked. The objective of the CMA is to promote a secure and safe network, nurturing local content and culture. Hence, blocking access to obscene material is not amounting to censorship. S.211 and s.233 of the CMA attributes liability to those who provide obscene content. Furthermore, s.292 and s.293 of the Penal Code punishes those who circulate such material.

(ii) The test in determining what is obscene was laid down in R v Hicklin – ‘tendency to deprave and corrupt those whose minds are open to such immoral influences.’

Content Code: 3.0 and 3.1 – whether the content has the tendency to deprave and corrupt those whose minds are open to such communications specifically, (i) explicit sex acts/pornography, (ii) child pornography and (iii) sexual degradation

 Under the CMA, there are various sections prohibiting obscene materials:

s.211(1) – No content applications service provider or person using such service shall provide content which is indecent, obscene, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass any person.

s.211(2) – the penalty for contravention is a fine up to RM 50k or imprisonment up to 1 year or both; and be liable to a further fine of RM 1k per day for continuance of offence.

s.233(1) – A person who -

(a) by means of any network facilities or network service or applications service knowingly makes, creates or solicits; and initiates the transmission of any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or

(b) initiates a communication using any applications service, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address commits an offence.

S.233(2) – A person who knowingly

(a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or

(b) permits a network service or applications service under the person’s control to be used for an activity described in paragraph (a)

- commits an offence.

s.233(3) – Penalty is a fine of up to RM 50k or to imprisonment up to 1 year or both; and a further fine of RM 1k per day for continuance of offence.

Under the Penal Code, there are other sections involved:

S.292 – whoever

(a) sells, distributes, publicly exhibits or in any manner puts into circulation, any obscene book, pamphlet, paper, drawing, painting representation or figure or any other obscene object whatsoever;

(b) – (e)

- shall be punished with imprisonment for up to 3 years or with fine or both.

S.293 – whoever sells, distributes or circulates to any person under 20 years, any such obscene object as referred to in s.292, is to be punished with imprisonment for up to 5 years, or with fine, or both.

(iii) Other methods to prevent access – (a) Educating the children to spread awareness of the negative effects of accessing such obscene material. (b) Situating the computers directly facing the counter, to prevent people from accessing such material.

Alibi - Section 103 of the Evidence Act 1950

S. 103 EA

Not all defences are statutory.

Alibi is not statutory, s.105 doesn’t apply.

It is governed by s. 103 of EA

Alibi: assertion made by the Accused in a criminal case or by a defendant in a civil case that he was elsewhere at or about the time of the offence/incident.

S. 3 to interpret s. 103

- logically, it would mean legal burden of proof on a balance of probabilities

However, you can still raise a reasonable doubt to acquit the Accused.

S. 11 EA – relevancy

S. 402A CPC – “establishing his alibi”

1. Dato Mokthar Hashim v PP [1983] 2 MLJ 232

Legal burden should be imposed on the accused person. However, in this case, the Federal Court referred to s. 402A of the Criminal Procedure Code which states “for the purpose of establishing his alibi”.

2. Yau Heng Fang v PP

The judge has misdirected himself in the previous case… in all criminal trials, the accused is deemed innocent until proven guilty by the prosecution. There is no burden placed on the accused to prove his innocence… defences such as alibi placed merely an evidential burden of introducing some evidence enough to create reasonable doubt in the minds of the jury. In other words, cannot look at s. 402 CPC, it is only procedure, should have looked at EA 1950.

3. Illian v PP

- Evidential burden was imposed

4. Arumugam Mothiyah v PP

The appellant brought to court a defence of alibi at a wedding. This was further supported by 4 other defence witnesses. The Sessions Court rejected the alibi because the accused could not name the bride and the bridegroom. The High Court however overturned the decision stating that the judge in the Sessions Court had failed to consider the fact that a wedding had in fact taken place on that time and date. [following the judgement in Illian v PP]

5. Empati Mat v PP

HC : legal burden of proof for alibi

COA agreed with the learned trial judge that the evidence did not have the effect of proving, supporting, corroborating or establishing in any way the alibi of the accused. The Court further referred to Dato’ Mokthar bin Hasim v PP and held that the accused only needs to establish his alibi on a balance of probabilities. The Court further stated that the accused had failed to cast a reasonable doubt. *This judgment is worded in a very confusing manner although the judge intended the correct position of the law*

6. Rosli Md Idrus v PP

- followed Dato Mokthar bin Hashim and also Empati Mat v PP where alibi has to be proved on the balance of probabilities.

7. Mohamad Najidi Abdul Halim v PP [2011] – This is a High Court case, on appeal from the Magistrate’s Court. The issue of burden of proof arises in this case. The Court referred to s.173(m)(i) to (iii) of the CPC.

(i) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.

(ii) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it and the Court shall pass sentence according to law

(iii) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal.

This section means that it is the duty of the prosecution to prove the case beyond reasonable doubt. Even if the accused fails to establish a defence but manages to raise a reasonable doubt, he can still obtain an acquittal.

The Court held that the lower court had made a misdirection in law when the trial Magistrate concluded that the accused had failed to prove alibi on the balance of probabilities and raise a reasonable doubt. The trial Magistrate had considered both balance of probabilities and raising a reasonable doubt to be one and the same thing, when in fact they are of two different levels.

Since it is a High Court, s. 182A of the CPC which is similar to s. 173(m) is referred to. The Court set aside the appellants conviction as the trial Magistrate has applied a higher burden on the defence of alibi, resulting in the miscarriage of justice.

8. Magendran Mohan v PP [2011] FC

One of the defences raised in this case against the charge of murder is alibi. FC held that only casting a doubt is sufficient to get an acquittal.