From 'insulting' to 'offensive'

Every Malaysian knows that we enjoy freedom of expression (otherwise called "free speech") and likewise, everyone is aware that the freedom is not absolute.

What is less clear is the "limits" of that free speech. Where does freedom end and defamation (a tort) or sedition (a crime) begin? How far can we go before we are regarded as having crossed the line?

The laws of defamation and sedition are examples of the "old" law. They are easier to comprehend because there is a large body of case law for us to learn from, unlike the "new" law created in several modern statutes passed by Parliament after the Internet landed on our shores, and the new cyberworld was added to our old "real" world.

A recent case can explain this better. A newsreader at Astro Awani is being investigated by the police for allegedly defaming police officers on television.

On May 1, the television station's spokesman, Ashwad Ismail, confirmed that one of its newscasters was being investigated for the comments he made on a Covid-19 SOP breach by two small traders in Kelantan, resulting in them being issued a RM50,000 compound each by the police.

Ashwad added that "Astro Awani will give its fullest cooperation to the Royal Malaysia Police in the investigation".

The newsreader is being investigated in connection with two separate criminal charges — the first under the old law (section 504 of the Penal Code), and the second under the new law (section 233 of the Communications and Multimedia Act 1998).

Section 504 of the Penal Code states that "Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment for a term which may extend to two years or with a fine or with both".

Section 233 (1) of the Communications and Multimedia Act 1998 states that "A person who — (a) by means of any network facilities or network service or applications service knowingly — (i) makes, creates or solicits; and (ii) initiates the transmission 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; or,

 (b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address, commits an offence."

Section 233(3) then describes the penalty: "A person who commits an offence under this section shall, on conviction, be liable to a fine not exceeding RM50,000 or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of RM1,000 for every day during which the offence is continued after conviction."

In simple words, the charge under the Penal Code is one of "intentionally insulting" the police personnel who were carrying out their duties in ensuring Covid-19 SOP compliance in Kelantan, whilst the charge under CMA 1988 is "making a comment which is offensive in nature".

According to the then Deputy IGP, Datuk Seri Acryl Sani Abdullah Sani, the newsreader's remarks were not only slanderous but could also arouse animosity towards law enforcers, especially the police.

He told a Malay language daily on April 30 that the remarks could erode the harmony between the police and the people.

So, what did the newsreader say that landed him in hot water? After stating that the RM50,000 compound imposed on the petty traders was "unthinkable", he allegedly had said "Ketika otak yang diletaknya di atas, tapi ada yang bertindak seolah otak diletak di lutut" (or in idiomatic English, "Use your head, stupid").

What the old law described as "insulting", the new law calls "offensive". Enjoy your free speech, but do not cross that line.

The writer was formerly a federal counsel at the Attorney-General's Chambers and a visiting professor at UTM, Skudai. He is now a full-time consultant, trainer and author

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