Are online insults criminal?

THERE is an etiquette to online chatter. We don’t write in ALL CAPS LIKE THIS, because that would mean we are shouting. We use emoticons when expression may be difficult to gauge. We think and check before we pass something around.

But apart from “netiquette”, what kind of online behaviour would get you in trouble with the law, or have you hauled up by the police?

Freedom to insult?

It was recently reported that the 29-year-old blogger, Aduka Taruna, who had “insulted” the late Sultan of Johor, would not face legal action because he had apologised. Information, Communications and Culture Minister Datuk Seri Dr Rais Yatim, who has ironically been target practice for jokes and insults online, said Aduka would have to formally apologise to the parties concerned.

“Mampus” is considered rude and…illegal?But what exactly did Aduka write? It was actually six short lines, complaining about the delay in the announcement of the sultan’s death. He ended by calling the government a “stupid species”. But apparently the most offensive thing Aduka wrote was the word “mampus”, which is considered rude and degrading in Malay. What constitutes an insult? And if we do not have lese majeste laws, what exactly was his crime?

Limitations online

The Malaysian Communications and Multimedia Commission (MCMC) typically investigates and takes action against netizens under the Communications and Multimedia Act 1998.

Section 211 of the Act criminalises the provision of content which is “indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person”.

Section 233 criminalises the “improper use of network facilities or network service”. This is for online users who “knowingly” initiate transmission or communication of “any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person”.

If either section is breached, the penalty is a fine not exceeding RM50,000 or imprisonment for a term not exceeding one year, or both. The offender shall also be liable to a further fine of RM1,000 for every day or part of a day during which the offence is continued after conviction.

The Sultan of Perak
(source: perak.gov.my)Section 233 was used when six bloggers were charged for insulting the Sultan of Perak in March 2009, instead of laws such as the Internal Security Act or Sedition Act. In July that year, Seah Boon Khim, a former EON Bank Berhad employee, was charged for posting an obscene blog title which made abusive and obscene comments against his former superior.

And then in September 2009, the MCMC investigated Malaysiakini for putting up two video reports in relation to the “cow-head protest”, but no charges were brought against the online news portal.

There were also the cases against bloggers Jeff Ooi and Ahirudin Attan, sued by the New Straits Times Press (NSTP) and its former editors in 2007 for allegedly defamatory postings. These were the first libel lawsuits of their kind in Malaysia. More were to follow involving prominent bloggers, including former NSTP group editor-in-chief Datuk A Kadir Jasin and blogger Raja Petra Kamaruddin. But these were cases arguing around fair comment and accuracy of facts, not annoyance and insults.

Am I being rude?

Freedom of speech and expression have a long way to go in this country, but I believe we should take note of the inconsistencies both in public and private. What annoys, insults or threatens us? If a person chooses in his or her private blog (complete with disclaimers that it is a personal opinion) to “insult” other races based on “personal observations”, should we urge the police to take action? What of staunch communists, capitalists, abortionists, pro-abortion activists, gay-rights activists, homophobes, atheists or religious extremists who greatly annoy the sensibilities of other groups of people?

The Ku Klux Klan burning a cross (© God Save The
South | Wiki Commons)I remember an online debate in the US over the constitutional freedom of expression versus what is deemed to be disruption, harassment, discrimination and intimidation. One particular argument was that members of racial supremacist group Ku Klux Klan have a constitutional right to burn a cross at a private event or rally, but not across the street from an African-American family’s home, since that would constitute harassment and intimidation. Scary. But obviously context matters. In cyberspace, however, the lines of the public and private, and the cheeky and serious can easily overlap and be confused. Do we ignore, counterargue, roar, report or take to the streets in response?

In Malaysia, when police recently charged a student over comments he made on Facebook regarding the spate of arson on churches, it was for posting an “offensive comment”. Mohamad Tasyrif Tajuddin, a 25-year-old student, had posted that he was willing to attack the Batu Caves temple for money, and that he had manufactured the explosives used in the series of church burnings. In the end, it was found that his latter claim was just an attention-seeking prank. But Tasyrif was charged nonetheless under Section 233(1)(a) for “knowingly using the application with the intention of threatening others”.

Personally, I have been known to jokingly threaten my friends that I would “kill them”, a la Achmed the Dead Terrorist. In that stand-up piece, comedian Jeff Dunham tells the politically-incorrect Achmed “you can’t tell jokes like that, it offends people”. In instances like these it is easier to tell what is said in jest and without intent. But what happens when one cannot really tell? Once again, context matters.

Reason and responsibility

Metro Tabernacle in Kuala Lumpur, the
first church attacked, on 8 Jan 2010
(Pic courtesy of Sivin Kit)

Against the landscape of attacks against churches and a Sikh gurdwara, and now pig heads placed in mosques, and the ongoing debate about the “Allah” issue, there is surely a need for netizens to be responsible and tactful about their comments online. If we do not appreciate politicians or anybody else policing our speech on the net, then we should keep on pressing for reasoned, measured and intelligent debate on issues. After all, cyberspace can be an emotionally charged sphere with little control.

But should we be afraid of expressing our thoughts and feelings within reason, in light of the cases above? The powers-that-be and provocateurs would have us know that people are easily offended and insulted in this country. The problem is that what is offensive and indecent to some may be perfectly fine to others.

Yet under the multimedia law, the authorities criminalise things as subjective as “offensive”, “indecent” and “annoying” alongside outright threats, harassment and intimidation. I am uncomfortable with criminalising thoughts and words, but if it must be done, there must be an unmistakable intent to harm and endanger. In all other instances, I think we should accept that being offended and insulted once in a while is part and parcel of life. After all, a life lived without being challenged or offended can’t be an altogether interesting one.

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Koh Lay Chin has been slammed and insulted on the internet herself, like so many past and present colleagues. She takes a mellow pill in stride, but believes there are some people you just cannot reason with.

Read previous The Dilated Pupil columns
For related stories, see In the Spotlight: Freedom of Expression

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