freedom of speech and its discontents
It’s come back to the same question again. I found this website while reading kamigoroshi’s post. Interestingly enough, you can get sued for allowing certain kinds of comments that others find libelous.
First, let’s be precise about something. I see discussions on the internet conflating libelous postings/comments and the (negative) judgement of content, and I think this is only muddying issues further.
(UPDATE: If a comment is libelous, then it has been judged to be so. So it makes no sense to talk about the ‘judgement of content’ as distinct from ‘libelous content’. I should be segregating between content that is libelous or non-libelous but contravening the content code of Malaysia)
A persons’s right to defend his or her own honour and reputation is enshrined in the Universal Declaration of Human Rights, viz.:
Article 12.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
I suppose the argument is, if you are a content provider and allow libelous comments, you therefore condone or agree with said comment, or at the very least, you have been irresponsible in allowing said comment, no matter what you think of it.
It’s not hard to believe this argument makes sense, however what worries me is that we effectively become our own blog nazis. We become god and moderator on our own blog. Granted we do that with spam, but with opinions? I suppose the content code would apply just as vigorously to blog content as to blog comments.
As we are effectively the ‘content providers’, therefore any comment left on one’s blog is in effect a contribution that we, as content providers, have allowed others to leave — which still leaves the responsibility of monitoring the content in our hands.
I don’t think there’s a dispute here, and I’m hard pressed to think of an alternative view about postings without sounding like a left-liberal. If what you say is libelous, then you deserve to be prosecuted to the extent of the law.
Obscenity, decency and other catchphrases
The content code lays out general grounds for regarding something as obscene, indecent, hateful and such. The definitions are broad, and are coupled with examples that declare which practices are deemed immoral or beyond the pale. I take it that these are informed by the social mores of Malaysia, or rather, the kind of morality that is acceptable by those who have the power to enforce it.
It’s always been a question about who makes these rules, and how these rules are being applied. Rules are boundaries and just that: there are things that are excluded from a fenced-up area, and there are things that are not.
And that leaves quite a lot of people out in the cold. We seem to live in a society where homosexuality, for example, is considered a disease, a defect or a perversion; where alternative lifestyles are considered beyond good taste or decency. These ideas are the enforcements of a morality based on the views of the majority. For those who don’t fit cookie-cutter roles and types, these rules effectively mean an exclusion.
It’s not difficult to think of counter-examples of groups of bloggers who would fall by the wayside, and worse still, it’s even easier to think of groups of people in the future who will fall outside the boundaries of acceptability. Is nudity, for example, wrong? Besides child pornography, I’m quite certain any number of us can think of alternative sexual lifestyles that would turn imams, priests and monks in their graves — or give living ones white hairs.
How will these people fare?
Regulations and double-edged swords
Does that mean regulating the “blog o sphere” is wrong, pointless or stupid? I’ve said before that the online anarchy has a way of sorting things out, and it always has; if someone has been stupid in their remarks, they get called out on them and they get thrashed online. It’s a free flow of information and opinion, and the only thing that will prevail are ideas and opinions germinating in the minds of readers.
Sometime back I saw something from Singabloodypore that should interest all bloggers and readers alike:
Full text of the Declaration :
1. Any law about the flow of information online must be anchored in the right to freedom of expression as defined in Article 19 of the Universal Declaration of Human Rights.
2. In a democratic and open society it is up to the citizens to decide what they wish to access and view on the Internet. Filtering or rating of online content by governments is unacceptable. Filters should only be installed by Internet users themselves. Any policy of filtering, be it at a national or local level, conflicts with the principle of free flow of information.
3. Any requirement to register websites with governmental authorities is not acceptable. Unlike licensing scarce resources such as broadcasting frequencies, an abundant infrastructure like the Internet does not justify official assignment of licenses. On the contrary, mandatory registration of online publications might stifle the free exchange of ideas, opinions, and information on the Internet.
4. A technical service provider must not be held responsible for the mere conduit or hosting of content unless the hosting provider refuses to obey a court ruling. A decision on whether a website is legal or illegal can only be taken by a judge, not by a service provider. Such proceedings should guarantee transparency, accountability and the right to appeal.
5. All Internet content should be subject to the legislation of the country of its origin (”upload rule”) and not to the legislation of the country where it is downloaded.
6. The Internet combines various types of media, and new publishing tools such as blogging are developing. Internet writers and online journalists should be legally protected under the basic principle of the right to freedom of expression and the complementary rights of privacy and protection of sources.
And the subject Article 19 states:
Article 19.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Now, what about instances where recommendation (5) contradicts recommendation (1)? Which should prevail? Because it seems to me that recommendation (5) assumes a virtuous, responsible government that imposes a fair, responsible set of rules, and enforces those rules fairly and responsibly.
What do you think?
Expressing yourself, but only in your head…
This whole debacle is funny and sad at the same time. I think about the bloggers in other countries facing regimes many times worse than our own bloated, corrupt government and I wonder if anyone in Malaysia bothers about their own rights in the last and final open frontier left to us, the internet.
To add a little undeserved drama to this post, let me just say that “what we don’t protect now will be lost in the future”.
The absurdity of it all sometimes makes me laugh helplessly.
Catch-22’s. That’s what this is all about, as far as you have written, unless there is a black and white legislation that states that all comments are not the sole responsibility of the blogger. Things like this are bound to happen. Though…aside from name calling and protests against freedom of speech, I have never seen a Blogger get sued because he moderates his comments.
Here is the thing, would WE as personal bloggers get sued because someone posted certain comments on our sites? The risk is there but I hardly think so. I think it depends on the type of content that we are writing and the type of comments we are getting in relation TO the post.
I do have a link you might find interesting though. It’s about how this AOL case might give us an idea on how we can protect ourself from being legal hassle while still upholding freedom of speech.
That aside, it’s a good reason to put a legal disclaimer in posts whereby comments can be liable to legal issues. It would certainly avoid catch-22’s.
Comment by Edrei — Friday, 2 September 2005 @ 6:00 pm
It’s a great link. I’ve never heard of a blogger being sued for defamatory comments either, but I have read about action threatened against a blogger in Singapore over unspecified postings made here.
This is the result.
The above is purely a case of a threat of a suit brought against a blogger purely on grounds of defamation.
With respect to the rest of my comments above, the problem is the very possibility of legal hassle over the content of sites.
We should all be aware of the possibility of legal action taken in breach of the Communications and Multimedia Act for prohibitions listed therein. Per the provisions under the highlighted section (per link), there is the possibility of enforcement of the act on matters, for example, relating to obscenity are undefined specifically.
The content code, which regulation were are enjoined to adopt, declares that adherence is a possible step towards detering legal action for breach of said Act, but if you observe closely, the evaluation of what is ‘obscene, indecent, hateful’ and such are just as broad, with examples that, ironically, many would concur with.
But what is left unsaid? Neither the provisions of the Act nor code cater for all possible scenarios, and that’s where judgement by a commission, council, community, body of judges, whatever comes in — interpretation on whether a person’s in breach of said Act is to be decided by a bunch of people who have no oversight.
And because it’s not going to be transparent, both you and I can be called out for, say, breaching norms of decency or be accused of obscenity, and with what appeal?
It scares me.
Comment by xpyre — Friday, 2 September 2005 @ 9:38 pm
Exactly. They might as well rule out the phrase “I hate noodles” as a hateful statement to noodle companies and noodle sellers and put grounds for a legal action.
I have however wrote about an issue like this before all these things came out though. The only way we’re not going to see something like this happen is when there is a recognised law stating specifically what we can or cannot say. It may not be good, but at least its a start that clears the grey areas.
How this is going to be done. That I haven’t worked out yet.
Comment by Edrei — Friday, 2 September 2005 @ 10:36 pm
It’s also a bit more complicated. Supposing I say that child pornography is reprehensible and should be censored. Why stop there? All our moral decisions enforceable at law suffer from the defect of being based on a majority opinion of what is right and what is wrong. With no certitude, there will always be slippery slopes to climb.
That being said, I don’t think it’ll ever be feasible to legislate what we can and cannot say online except in the broadest sense possible to allow for some flexibility; the fact that there are an infinite number of scenarios in which the law has to be applied works both ways in that too rigid a set of rules becomes superfluous when applied to scenarios it is not equipped to deal with.
The problem, I think, is one of oversight. My complaint that liberal interpretations of the prohibitions in the Act stems from this — we are essentially letting ourselves be governed, with respect to decisions about breaches, to a council or commission, or a body of people who are the final adjudicators of what is right or wrong; even the judiciary is is appointed anew with each successive term of government, and it ensures a certain level of checks and balances…
But a commission? Can you imagine your life, online or otherwise, governed by a group of theocrats as with Shariah law, with probably no recourse to modern law? I feel the same kind of thing can happen with the enforcement of internet regulations.
Even if it is argued that since the regulations laid down have been established by a statutory instrument effectively placing internet regulation within the jurisdiction of the courts of law, there still remains the problem of standards of judgement applied to content deemed obscene, indecent or hateful. Will judges appeal to ‘custom’? Are there precedents with respect to judgements about what is obscene or not, indecent or not..?
It worries me to no end!
Comment by xpyre — Friday, 2 September 2005 @ 11:46 pm