Attacks On Internet Free Speech In Malaysia And Indonesia Demonstrate Why Section 230 Is So Important

from the intermediary-liability-is-all-about-free-speech dept

Two separate stories from Southeast Asia help demonstrate why intermediary liability protections like Section 230 are so important for free speech online (and why it’s positively ridiculous that some have argued that 230 is an attack on free speech). The first is an article about a court case in Malaysia, in which a small independent media site has been fined an astounding amount: $124,000 over five reader comments that a court said violated the law. Notably, the website in question, Malaysiakini, had removed those comments relatively quickly. But the court said that the removals weren’t fast enough:

A seven-judge appeals court panel found Malaysiakini guilty of contempt of court and ordered it to pay a fine of nearly $124,000, more than double the amount sought by prosecutors, for five comments left by readers.

There was a conflict of interest here: the five comments were insults about the judiciary who then went on to issue the fine itself. The court argued that Malaysiakini should have pre-vetted every comment before allowing them on the site:

The readers? comments were posted on a story about the Malaysian judiciary, which closely guards its reputation. They were later removed from the article, but not quickly enough to avoid charges.

In their verdict, the judges concluded that Malaysiakini should have vetted the comments and refrained from posting those that constituted contempt of court.

The site argued — quite reasonably — that it shouldn’t be held liable for user comments, but the court rejected that argument.

The panel rejected defense arguments that Mr. Gan and the news outlet were not legally responsible for their readers? comments and that prosecutors should have been required to prove that they intended to publish scandalous material.

The article goes on to note what a massive chilling effect this will have for speech in Malaysia, where most media organizations are propaganda operations for the government. Malaysiakini is one of a group of small independent sites that have been known to challenge the government (another such site, Sarawak Report, was blocked in Malaysia and resulted in all of the website Medium being blocked in Malaysia for a few years after the site started publishing on Medium.

Of course, this shouldn’t be a surprise. Right after the mess with Sarawak and Medium, the Malaysian government put in place a new law that focused on removing intermediary liability protections for service providers, so the government could hold them liable for speech it disliked. And now we see how that’s working out.

That’s also why people should be very, very concerned about what’s happening nearby in Indonesia, where a truly draconian new intermediary liability regulations has been proposed. Rather than protecting intermediaries that enable speech, this law — called MR5 — seems designed to lead to widespread censorship. The law will require websites to register with the government, and must give law enforcement full access to any user content — including private communications and private storage. Companies based outside of Indonesia are still required to appoint a local contact or they could be blocked entirely.

As for intermediary liability, a key part of the law is that a website must takedown “prohibited information” even when posted by a user — but that includes any information that “creates community anxiety” or lets people know how to access such content:

This language is extremely concerning. Compelling Private ESOs to ensure that they are not ?informing ways” or ?providing access? to prohibited documents and information, in our interpretation, would mean that if a user of a Private ESO platform or site decides to publish a tutorial on how to circumvent prohibited information or content (for example, by explaining how to use VPN to bypass access blocking), such a tutorial itself could be considered prohibited information. Use of a VPN itself could be considered prohibited information. (The Communications Minister has told Internet users in Indonesia to stop using Virtual Private Networks, which he claims allow users to hide from authorities and put users? data at risk.)

The speech restrictions go pretty far as well:

Article 9(3) includes within  ?prohibited content and information? any speech that violates Indonesian law and regulations. GR71, a regulation one level higher than MR5, and the later Law No. 11 of 2008 on Electronic Information and Transactions, both use similar vague language without offering any further definition or elucidation. For example, Law No. 11 of 2008 defines ?Prohibited Acts? as any person knowingly and without authority distributing and/or transmitting and/or causing to be accessible any material thought to violate decency; promote gambling; insult or defame; extort; spread false news resulting in consumer losses in electronic transactions; cause hatred based on ethnicity, religion, race, or group; or contain threats of violence. We see a similar systematic problem with the definition of ?community anxiety? and ?public order,? which fails to comply with the requirements of Article 19 (3) of the ICCPR. 

Additionally, Indonesia?s criminal code considers blasphemy a crime?even though outlawing “blasphemy” is incompatible with international human rights law. The United Nations Human Rights Committee has clarified that laws that prohibit displays of lack of respect for a religion or other belief systems, including blasphemy laws, are incompatible with the ICCPR. When it comes to defamation law, the UNHRC states that any law be crafted with care to ensure it does not stifle freedom of expression. The laws should allow for the defense of truth and should not be applied to other expressions that are not subject to verification. Likewise, the UNHRC has stated that ?laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the ICCPR imposes on States parties to respect for the right to freedom of opinion and expression.? Criminal defamation law has been widely criticized by UN Special Rapporteurs on Free Expression for hindering free expression. Yet under this new law, any speech that violates Indonesian law is deemed prohibited.

In addition, the law appears to deputize website operators to spy on their users and block any such content.

MR5 also obliges Private ESOs (except cloud providers) to ensure that their service, websites or platforms do not contain and do not facilitate the dissemination of such prohibited information or documents. Private ESOs are then required to ensure that their system does not carry prohibited content or information, which will in practice require a general monitoring obligation, and the adoption of content filters. Article 9 (6) imposes disproportionate sanctions, including a general blocking of systems for those who fail to ensure there is no prohibited content and information in their systems.

It will not be surprising to learn of stories like the first one above concerning a Malaysian publication to happen in Indonesia under this law as well.

This is one reason why Section 230 is so important to free speech. But letting the websites themselves determine what content they’re comfortable with hosting, rather than threatening to fine them out of existence if any “bad” content gets through, it means that there are places for a wide variety of content online. What Malaysia has already done, and what Indonesia is doing now, is a way to truly censor critics of the government, and to make sure that they have no corner of the internet to speak out against government corruption.

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Comments on “Attacks On Internet Free Speech In Malaysia And Indonesia Demonstrate Why Section 230 Is So Important”

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Stephen T. Stone (profile) says:

So, hey, troll brigade: What’s that about how a lack of 230 will save free speech, again? Because it seems like a lack of 230 (or an equivalent thereof) in Indonesia and Malaysia is leaving free speech open for at least a kneecapping from the government. Or do you think destroying independent outlets for speech is a good thing?

Anonymous Coward says:

How dare they criticize

What is it with those in any position of authority.
It seems like there is a competition for who has the thinnest skin.
They demand respect rather than earn it and then whine like a spoiled child when a slightest bit of criticism is thrown their way.

Its almost like the internet drew back the curtain to show what a bunch of ingenuous, hypocritical, morons they can be and they will do their darndest to out that genie back in the bottle. It seeming more likely that there is a greater than 0 chance they will succeed.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Doing a great job there

The readers’ comments were posted on a story about the Malaysian judiciary, which closely guards its reputation. They were later removed from the article, but not quickly enough to avoid charges.

I see the malaysian judiciary has taken the same tact of thugs throughout history, ruling by fear and ‘respect’ at gun-point. If they can’t take some random schmucks on the internet saying mean things about them without trying to crack down on free speech then I’d say they’re doing more damage to their own reputation than anyone else ever could.

On a more general note as the article rightly points out this is why intermediary protections are so vital. Leave platforms liable for what users post, or even worse let the government decide what speech is and is not allowed and you create massive chilling effects on speech, as sites are forced to limit what they allow or block user content entirely lest they run afoul of government ‘standards’.

Those attacking 230, whether because they want sites to moderate less or moderate more are not doing it for ‘free speech’ they’re doing it because they don’t like how the platforms are exercising their free speech rights and want to force them to ‘do it right’, either by protecting assholes from consequences for their words and actions or giving the boot to anyone who even might step over the line.

ECA (profile) says:

lets just say

They are enforcing the laws already on the books. Just reinforcing them to the internet.

I still have this thought about Who is requesting, in the USA, changes to the law. As with all the regular laws we have, that generally Cover most things anyway. Why Think changing 230 Would help them do much of anything, Except take a No Salery site to court to gain nothing. All 230 does is reinforce Our main laws, so there are no questions about it.

This comment has been deemed insightful by the community.
Samuel Abram (profile) says:

Re: What about Newspapers/Magazines?

You can’t really "comment" on a Newspaper or Magazine in real time. You can write a letter, but that takes far longer and comments get posted immediately rather than letters to the editor which are posted at the print publisher’s discretion. That’s why people who want to destroy §230 because print media doesn’t have a similar law are either idiots or disingenuous.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: What about Newspapers/Magazines?

230 doesn’t for their printed stuff but it does for any online platforms they might have that allows user comments however the same idea applies to both, that being ‘you’re responsible for what you say/do, not what someone else says/does’.

In the same way that you can’t sue a newspaper because someone bought a copy and scribbled illegal comments on it you don’t get to sue an online platform because someone used it to post illegal content that the platform had nothing to do with beyond providing the ability to post. Where you can sue a newspaper is for what they themselves printed, because that was them choosing to create the content in question, and likewise if a site chooses to post something that might violate a law 230 doesn’t protect them either.

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: What about Newspapers/Magazines?

"Why isn’t the same protections that newspapers and magazines have adequate?"

Newspapers and magazine have an editor who approves each article that’s printed, with magazines often weeks in advance, and the articles are written by employees of the publisher or by contractors hired to do the work.

Internet platforms have no prior knowledge of anything that users post before they’re posted, nor any necessary prior arrangement with those users, and cannot possibly know what will be written until after it’s posted.

It’s a completely different thing.

"IANAL but I don’t think Sec 230 applies to them?"

Section 230 applies to anything users post on their website, be that comments or other interactions.

Anonymous Coward says:

In Indonesia there is a law (Electronic Information dan Transaction Law) thay you can report to the police because someone hurt your feeling on the internet.
Basically its okay if you said directly FU mr. President to the person in live but if you write it on the internet, somebody could report you and the police could arrest you.
Everybody is using this law. Politician to stop their ckmpetitor, quarreling celebrity even normal people is using this law.

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