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.