Social media users must not be co-opted to censor online dissent

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Social media has been used to spread slander - Graphic: Wikipedia

Article 19 is concerned that a new “advisory for group admins” released by the Malaysian Communications and Multimedia Commission (MCMC) attempts to co-opt social media users to censor third-party content which the government considers “inappropriate”.

The MCMC advisory is a clear reminder to Internet users that they are expected to enforce Malaysia’s tough restrictions on freedom of expression online through private censorship.

The advisory, released on World Press Freedom Day (3 May 2017), targets “administrators” of group pages hosted on communication platforms such as Facebook, WhatsApp, Wechat, Viber, and Telegram, or on similar services, advising them to take a proactive role in monitoring and removing content posted by others to their pages.

The advisory uses ambiguous language to instruct “group admins” that they should not, inter alia, “be an absent administrator”, “encourage, incite or abet inappropriate posts”, “allow conversations to wonder off topic”, or “breach community standards” (set by social media companies). It also encourages that they “check posts regularly” and “consider removing or blocking those who persist in making inappropriate posts.”

While not a legally enforceable regulation in itself, a warning on MCMC’s Facebook page accompanying the advisory stated that internet users should “be wise in using social media for their own protection”. This implies that failure to comply with the advisory may make group admins liable for the posts of others, even though this type of liability for third-party content is not currently provided for in Malaysian law.

The MCMC advisory has been issued against a backdrop of individuals being regularly arrested, investigated and charged for online expression critical or questioning of the government, in particular under the Communications and Multimedia Act 1998, the Sedition Act 1948, and provisions of the Penal Code, which do not comply with international human rights law.

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Article 19 therefore considers that the MCMC advisory is seeking to deliver an implicit threat to social media users, that even if they are not the author of offending content, they can still be prosecuted by association.

This is likely to have the effect of co-opting private internet users into the role of enforcing draconian content restrictions in the online sphere, with victims of this censorship not having any recourse to challenge or seek redress for such removals. This is a concerning direction of travel, in particular if attempts are made to give legal force to the vague “advice” of the MCMC.

International freedom of expression standards clearly provide that no individual should be held liable for content which they are not the author of, unless they refuse to obey a court order to remove that content.

Such an order must be adopted in accordance with a validly enacted law, with due process guarantees by an independent, impartial and authoritative oversight body (assuming they have the technical capacity to comply with the order).

The UN special rapporteur on freedom of expression has warned that private actors should not be pressured by legal or extra-legal means to take steps that unnecessarily or disproportionately interfere with freedom of expression, including by removing content.

The MCMC advisory is clearly intended to pressure social media users, against international freedom of expression standards, and against the spirit of the freedom of expression guarantees in Article 10(a) of the Federal Constitution of Malaysia.

Article 19 urges the MCMC to retract the advisory without delay and make clear to social media users that they cannot be held responsible for content created by third parties.

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We also call on the Malaysian government to engage in comprehensive reforms to legislation that violates the right to freedom of expression, including online, in particular the Communications and Multimedia, the Sedition Act, and the Penal Code.

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