Cyber Security Bill is a threat to freedom of expression online

TARA WINSTEAD/PEXELS

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Article 19 is concerned about the threat that the Malaysian Cyber Security Bill 2024 presents to the right to freedom of expression online as well as to media and broadcast organisations in Malaysia.

Any legislation on ‘cybercrime’ must fully comply with international human rights standards, in particular those on the right to freedom of expression and privacy.

On 3 April, the upper house of Parliament, the Senate, unanimously passed the Cyber Security Bill 2024 after its third reading. On 27 March, the House of Representatives, the lower house, passed the bill after the second reading. The bill was tabled for the first reading on 25 March, in a surprise move to civil society.

The speedy passing of such a problematic law reflects the Malaysian government’s poor commitment to upholding freedom of expression.

Next, upon assent by the king, the law will take effect once it is published in the government gazette.

Article 19 is gravely concerned about the speedy passing of the bill, as it will be a mechanism for government censorship of online expression.

It will give the government unaccountable control of computer-related activities, as well as nearly unlimited search and seizure powers. Its criminal provisions do not require any actual intent to violate, effectively introducing many strict liability offences.

As such, it is part of the alarming regional trend toward increasingly repressive cyber security regulations, which must be reversed.

Against the backdrop of existing censorship and an increasingly repressive environment for journalists, human rights defenders and land rights defenders in Malaysia under the Communication and Multimedia Act 1998 (CMA), the broad language of the bill will likely be abused to further restrict online freedom of expression and dissent in the country.

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In our analysis, Article 19 points out the following issues:

  • The bill will create a system for broad control of digital services in Malaysia. Although labelled as a ‘cybersecurity’ instrument, it fails to be narrowly tailored to address data breaches causing serious harm, and it does not resemble other computer-related legal instruments. The bill deems “communications”, and hence the media, to qualify as “critical information infrastructure” that are potentially subject to disproportionate reporting and regulation under threat of criminal sanctions
  • The broad scope of key terms under the bill could capture journalistic activities and target whistleblowers. The bill would conflate any disclosure of information in the public interest with the intentional infringement of security measures with dishonest intent. The framing of “cyber security” includes the phrase “unauthorised access” to a computer. A “cyber-security incident” could therefore describe journalistic activities such as reporting on “unauthorised” leaked evidence of corruption provided by a whistleblower. It can even imperil cyber-security researchers and professionals doing routine pen testing to actually improve network security. Such a concern is far from hypothetical; journalists in Malaysia have previously faced harassment for publishing evidence from whistleblowers in the public interest
  • The bill would require prior licensing of a wide range of expressive activities. Anyone providing “cyber security services” in Malaysia will require pre-approval under arbitrary standards subject to change or revocation at any time under threat of up to ten years’ imprisonment. The scope of “cyber security services” is vague and goes well beyond any common conception of the phrase. It would require licensing those who exercise their right to expression by publishing or distributing source code online in the public interest, engaging in academic research, or disseminating free digital security tools to journalists and human rights defenders
  • The bill will provide for search and seizure powers not subject to judicial or other independent review. The chief executive of the committee may appoint anyone to be a so-called “authorised officer” with the same powers as police. These powers include the ability to execute searches and seizures of persons and places without any need for a warrant. While it might appear at first that the bill requires such warrants, it provides a broad exception that an authorised officer can skip obtaining a warrant so long as he or she claims (without independent checks or other review) there is “reasonable cause” for not needing one. Further, the “chief executive” established under the bill may issue production demands with no warrant requirement
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These broad powers are particularly concerning as Malaysia has seen an increasingly repressive climate in recent years. 444 cases had been opened under CMA Section 233 from 2020 through January 2023, including 38 prosecutions, 31 convictions and several ongoing trials.

Article 19 has previously warned that the CMA is often combined with other criminal laws to levy severe criminal sanctions as an intimidation tactic to chill freedom of expression.

There has also been an alarming use of police powers against online expression, including against journalists, in recent years. These include:

Article 19 further questions the necessity of the bill when nations are debating an international convention on cybercrime at the UN level, in a process Malaysia is actively participating in.

While Article 19 and numerous human rights organisations have taken serious issue with the UN negotiations and current draft text of the proposed convention, we note that the bill falls far short of even that standard.

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Article 19 believes the bill to be unnecessary and flawed in its current state. We urge the government to withdraw the bill before the royal assent to address the shortcomings identified above to ensure the compatibility of any cybercrime legislation with international standards of freedom of expression.

We also encourage the proposal to be tabled in anticipation of any outcomes of the ongoing UN cybercrime convention negotiations.

We stand ready to provide further assistance in this process.

We repeat our urgent call for Malaysia to renew its commitment to human rights by signing and ratifying the International Covenant on Civil and Political Rights and other major international human rights treaties and repealing or amending all laws restricting freedom of expression in Malaysia. – Article 19

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.
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