Cyber Law

Chapter 4
Freedom of Expression

Objectives
What

is the legal basis for the protection of

freedom of speech, and what types of speech are
not protected under the law?

In

what ways does the Internet present new

challenges in the area of freedom of expression?

What

key free-speech issues relate to the use of

information technology?

Right

to freedom of expression

Important right for free people

everywhere
Guaranteed by the First Amendment (US)

Definition

of free speech includes

Nonverbal, visual, and symbolic forms of

expression
Right to speak anonymously

First Amendment Rights

(continued)
Not

protected by the First Amendment

Obscene speech
Defamation
Incitement of panic
Incitement to crime
Fighting words
Sedition

Freedom of Expression: Key

Issues
Controlling

access to information on the

Internet
Anonymity
Defamation
Hate speech
Pornography

Obscene Speech
Speech

is considered obscene when

Average person finds the work appeals to

the prurient interest
Work depicts or describes sexual conduct
in an offensive way
Lacks serious literary, artistic, political, or
scientific value

Sedition Act

Introduced by the British 1948

May 13, the government amended the
constitution to expand the scope of
limitations on freedom of speech.
The act criminalizes speech with "seditious
tendency", including that which would
"bring into hatred or contempt or to excite
disaffection against" the government or
engender "feelings of ill-will and hostility
between different races".

Sedition Act Provision

Article 10(4) also states that "Parliament
may pass law prohibiting the questioning
of any matter, right, status, position,
privilege, sovereignty or prerogative
established or protected by the provisions
of Part III, article 152 and153 otherwise
than in relation to the implementation
thereof as may be specified in such law".
If found guilty sentenced to 3 years in
jail, RM5 000 fine or both.

10

Under section 3(1), those acts defined as having a

seditious tendency are acts with a tendency:

(a) to bring into hatred or contempt or to excite

disaffection against any Ruler or against any Government;

(b) to excite the subjects of the Ruler or the inhabitants of

any territory governed by any government to attempt to
procure in the territory of the Ruler or governed by the
Government, the alteration, otherwise than by lawful
means, of any matter as by law established;

11

(c) to bring into hatred or contempt or to excite disaffection

against the administration of justice in Malaysia or in any
State;

(d) to raise discontent or disaffection amongst the subjects

of the Yang di-Pertuan Agong or of the Ruler of any State or
amongst the inhabitants of Malaysia or of any State;

(e) to promote feelings of ill-will and hostility between

different races or classes of the population of Malaysia; or

(f) to question any matter, right, status, position, privilege,

sovereignty or prerogative established or protected by the
provisions of part III of the Federal constitution or Article
152, 153 or 181 of the Federal Constitution.

12

Defamation
Publication

fact that is

of a statement of alleged

False
Harms another person
Harm

is often of a financial nature

Slander

Oral defamatory statement

Libel

Written defamatory statement

13

Criminal

defamation is provided for under

Section 499 of the Penal Code, under which
defamation is established once it is shown that
the words either spoken or intended to be read
or by signs, or by visible representations, make
or publish any imputation concerning any
person, intending to harm, or knowing or having
reason to believe that such imputation will
harm the reputation of such person.
The penalty for offenders found liable for
criminal defamation is a fine, imprisonment of
up to two years, or both.

14

Under this Act, defamation is established

if a plaintiff is able to show that
publication of the defamatory statement
was done, and the defamatory statement
made, with malicious intent and/or the
words in the defamatory statement in
their natural and ordinary meaning reflect
the defamatory intention. Further, the
plaintiff must show that the statement is
not a fair comment or justifiable.

15

Generally,

defamation occurs when a

statement or publication injures the
reputation of another. Malaysian law
contemplates both civil defamation and
criminal defamation. Civil defamation is
provided under the Defamation Act
1957.

16

Controlling Access to
Information on the Internet
Popular Internet filters
(continued)

ContentProtect
CYBERsitter
NetNanny
CyberPatrol
HateFilter

17

Controlling Access to
Information on the Internet
ISP blocking
(continued)

Blocking is performed on the ISP server

ClearSail/Family.NET prevents access to
certain Web sites

18

Anonymity

Principle of anonymous expression

People can state opinions without revealing

their identity
In the wrong hands, it can be a tool to commit
illegal or unethical activities

Anonymous remailer service

Computer program that strips the originating

address from the e-mail message
Forwards the message to the intended recipient
Ensures no header information

19

Anonymity (continued)
John

Doe lawsuit

Identity of the defendant is temporarily

unknown
Common in Internet libel cases
Defendant communicates using a
pseudonym or anonymously
ISPs subpoenaed to provide the identity
By filing a lawsuit, the company gains
immediate subpoena power

20

National Security Letters

Requires

financial institutions to turn

over the electronic records of
Suspected terrorists
Spies

USA

Patriot Act allows the FBI to use

NSLs to obtain records from banks and
other financial institutions if they are
sought for an intelligence or terrorism
investigation

21

National Security Letters

(continued)
USA

Patriot Act includes a gag provision

Firm cannot inform customers of the

investigation

Intelligence

Authorization Act for Fiscal

Year 2004

Expanded the scope of discovery beyond

financial institutions
Now

includes ISPs

22

Defamation and Hate Speech

(continued)
Some

ISPs voluntarily agree to prohibit

subscribers from sending hate
messages

Does not violate subscribers First

Amendment rights
ISPs must monitor the use of their service
Take action when terms are violated

23

Pornography
The

Internet has been a boon to the

pornography industry

More than 60,000 Web sex sites are

accessible
The sites generate at least $1 billion a
year in revenue

CAN-SPAM

Act

Deterrent in fighting the dissemination of

pornography

24

Pornography (continued)
Reasonable

workplace

steps to stop access in the

Establishing a computer usage policy

Prohibiting

access to pornography sites

Identifying those who violate the policy

Taking action against those users

Numerous

federal laws address child

pornography

Federal offense

Managers Checklist for Handling

Freedom of Expression in the
Workplace
25

26

Summary
First

Freedom of religion
Freedom of expression

Key

Amendment protects the right to

issues:

Controlling access to Internet information

Anonymous communication
Spread of defamation and hate speech
Access to pornography