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.
Filed Under: comments, free press, free speech, indonesia, intermediary liability, malaysia, section 230