Making offence in Twitterjaya


By Art Harun 

There is an obvious lack of misunderstanding about the so called freedom of speech in cyberspace. Too many people think that they are free to say anything about everything in any way they like in cyberspace.

This misconception is further compounded by some of our Ministers’ statements that “special laws or rules” will be made to govern publications in cyberspace. Those kind of statements give the impression that the cyberspace is not governed by our “normal” laws and that whatever is published in cyberspace is not subject to such laws. Hence the necessity for “special laws or rules” to govern publications in cyberspace.

That is one of the most biggest misconceptions in this new millennium.

In so far as Malaysia is concerned, the only laws which do not govern the cyberspace is the necessity for licenses or permits before a publication is made. Apart from that, I can’t think of any laws which do not apply to the cyberspace, especially when it comes to publications of materials, be it in audio, video or written form.

If somebody publishes an article in cyberspace about another person’s character which is not true and that publication adversely affects the person’s  character or credibility, the law of defamation applies just as it does if such publication was made in a magazine or newspaper. It is as simple as that. For those who would like further reference on this, just go and read Dow Jones & Co Inc v Gutnick [2002] HCA 56 (Australian High Court).

The mere fact that our government has issued the Bill of Guarantee does not in any way mean that we can do whatever we like in cyberspace. All publications in cyberspace are still subject to the laws. Pure and simple.

The only thing about the cyberspace is anonymity. That makes it a bit more difficult for the prosecution to prove that the maker of the offending publication is the accused person. How does the prosecution prove that the accused person was the actual person who published the offending publication?

The second thing which poses a difficult issue in any prosecution for offending publications in cyberspace is jurisdiction. The Gutnick’s case above demonstrates that.

In short, I am writing this in Kuala Lumpur. This article is stored in digital form in a server somewhere in the world. I must confess I do not know where the server is. It could be in Timbuktu for all I know.

As and when you hit on this blog from your computer in say Ipoh, this blog will appear on your monitor. You will then read what I have written in Ipoh.

Let’s just say I am sued in Kuala Lumpur for defamation for my article. The question is whether the Courts in Kuala Lumpur would have the jurisdiction to try my case. That would depend where the publication was made.

Questions regarding jurisdiction is imperative because a Court can only try a case which is within it’s territorial jurisdiction.