Offensive Statements on Social Networking Platforms with the special
reference to Cyber Defamation: A Comparative Analysis between Malaysia and
Bangladesh
Shahin Alam*,1 Md. Zahidul Islam2
1Postgraduate Student, Ahmad Ibrahim Kulliyyah (Faculty)
of Laws (AIKOL), International Islamic University Malaysia (IIUM).
2PhD Researcher, Ahmad Ibrahim Kulliyyah (Faculty) of
Laws(AIKOL), International Islamic University Malaysia (IIUM).
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ABSTRACT |
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Keywords: Social Networking; Cyber Defamation;
Bangladesh and Malaysia. |
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Crimes committed due to
misuse of social networking sites are becoming a serious matter in Malaysia,
Bangladesh as well as whole over the world. As a comparative study the key
objective of this paper is to examine how social networking websites are
being misused in committing crimes especially defamation on online
environment in Bangladesh as well as Malaysia, and to analyze the legal
frameworks and the attitudes of judiciaries of these jurisdictions on the
present matter. It also attempts to identify the certain issues and
challenges. Social Networking Sites particularly Twitter & Facebook are
leading to various offences especially offensive and defamatory speech in
those platforms. Although legal instruments recognize such activities as
offences, the controlling of those is being affected due to existence of
certain substantive as well as procedural lacuna in laws and ineffective
enforcements mechanisms. The scope of crimes committed in cyber space due to
misuse of social networking sites is wide, but the ambit of this paper is
limited to offensive statements especially cyber defamation. It is not going
to distinguish defamation committed online environment under civil or
criminal laws rather to analyze defamation committed in Malaysia as well as
Bangladesh through Facebook & Twitter. Publisher All
rights reserved. |
There is a growing popularity of Social Networking Sites (SNSs) among
the Internet users. At present, 1.5 billion people across the world have their
profiles in social networking sites.[i]Recently, both Malaysia and Bangladesh have seen a phenomenal increase
in the use of SNSs such as personal blogs, Facebook and Twitter. Facebook has
about 1.11 billion monthly active users worldwide,[ii] and estimated 500 million people are using Twitter.[iii]There are about 13.3 million Facebook users in
Malaysia which representing
almost 46 percent of its total population, and this puts Malaysia on the 8th
spot in Asia and 21st place in the world.[iv] Statistics show almost 2 million people use Twitter in Malaysia.[v]In compare with, approximately 3.4 million Bangladeshi use Facebook which is about one-fourth of
Malaysian Facebook users,[vi]and no authentic source of statistics regarding Tweeter users in
Bangladesh is found, but it cannot be said that Twitteris not gaining
popularity in this territory. It is
believed that the number of users of both SNSs in both jurisdictions as well as
whole over the world is being increased. The popularity of Social Networking Sites particularly Facebook and Twitter is undeniable as the number of their
users is growing day by day as they offer their members the ability to connect
instantly and communicate with other members. However, various types of cyber
crimes are being committed by using Facebook or Twitter. This paper examines
how referred SNSs are being misused by their users through making offensive
statements.
Online Social Networks
or Social Networking Sites (hereinafter called SNSs) are one of the most
remarkable technology phenomena of the 21th century.[vii]It can be broadly defined as social media or social network is an
online social structure made up of individuals or organizations, which permits
easy online interaction by users.[viii] It enables people to socially interact with one another online.
Facebook, Twitter, Linkedin, and MySpace are more popular social networking
websites in the world, and among them Facebook and Twitter are considered as the top SNSs. From the number of users, it can be realized that the most popular
SNSs is Facebook which was launched in February 2004, operated and privately
owned by Facebook, Inc.[ix] Facebook provides online social networking service, and it allows its
users to create personal profiles, and the users can connect instantly with one
another, to upload or download and share links. Twitter is also another very
popular online SNSs or online application which was launched in 2006.[x]Twitter is commonly described as a social networking and
micro-blogging tool, which allows members(also called tweeters) to send and
read 140 characters text messages, regarding latest stories, ideas, opinion, and
news, known as tweets.[xi]The term twibelis used
to describe libelous statements posted on Twitter.[xii]
Cyber Crimes
Generally, cyber crime
is a crime committed in cyber space or on online environment. It is defined as
an unlawful act wherein the computer is either a tool or a target or both.[xiii]Computer using as a tool or medium means computer is being used to
commit another crime prescribed in criminal laws e.g. inducing to commit any
crime through posting or sharing statement in any blogs, Facebook, or Twitter.
And computer is used as a target means damaging computer through internet e.g.
posting malware to access without authorization known as hacking.
Cybercrime is a worldwide problem now. As it is known that there is no
universal definition of crime. Generally, a crime is an anti-social act for
which punishment is available. When a crime is committed in cyber space or
online environment, it is defined as a cyber crime; hence, a cyber crime is
constituted with all elements of particular offences, plus admissibility of
cyber space. It may be argued that cyber space is not real, so doing
anti-social act will not be treated as crime. If any anti-social activity
committed in real world is an offence, such anti-social action committed online
in any platform or format should be considered as an offence as activities bear
similar effects in cyber space as bears in real space. There are diverse of
crimes may be committed on online social networking platforms. For examples,
copyright violation or unauthorized data sharing, piracy, harassment, cyber
pornography, online fraud, identity theft, provocation to commit crime etc can
be committed in or by using Facebook. Moreover, users may contain offensive
contents including cyber threat or extortion to injure defamatory statement and
hate speech etc in his or her Facebook or Twitter plot.
Offensive statement
means any statement can lead to an offence. It includes defamation, hate
speech, statement making against the State or authority or any religion or belief.
Generally, a statement is considered as defamatory if it "tends so to harm
the reputation of another as to lower him in the estimation of the community or
to deter third persons from associating or dealing with him."[xiv]A defamatory statement is also defined as a statement which attempts
to lower a person in the estimation of right-thinking members of society
generally or to cause him to be shunned or avoided or to expose him to hatred,
contempt or ridicule, or to convey an imputation on him disparaging or
injurious to him in his office, profession, calling, trade or business.[xv]Defamation can take in the form of libel (printed defamation) or
slander (spoken defamation).[xvi]A defamatory statement may be in the form of wards, pictures, visual
images, gestures or any other method which signify a meaning.[xvii]
Cyber Defamation occurs when defamation is committed with the help of
computers or the Internet, for instance, someone publishes any defamatory
matters about someone on any online platform.[xviii] In other words, any act,
deed, word, gesture in cyberspace designed to harm a persons reputation on the
internet amounts to defamation.[xix]With the advance of social network system, cyber defamation is now easier than making a defamatory statement in
real world. The reason is SNSs like Twitter and Facebook permit to publish or
post a statement instantly that can reach thousands of people. Online
defamation is treated the same way as more traditional forms irrespective of
posting in blog, or updating status in Facebook or Twitter, that is to say,
action can be taken against makers of such a post or update for any defamatory
statements posted or updated online.
The Computer Crimes
Act 1997 (CCA) actually modeled from the UKs Computer Misuse Act 1990 is the
prime legislation which was enacted to control cyber crimes in Malaysia, for
example, unauthorized access or unauthorized modification are considered as
cyber crimes in law.[xx]For the purpose of ensuring the protection against the misuses of
computers and computer criminal activities the present Act was made, but it is
silent on making offensive statement on online platforms including cyber
defamation committed by using computer. In order to regulate defamation
committed in cyber space more specifically in Facebook and Twitter platforms,
the Malaysian Communication and Multimedia Act 1998(herein after called CMA) is
relevant. The objectives of the CMA is to regulate the converging
communications and multimedia industries, and for incidental matters.[xxi]
Section 211 of the CMA 1998 prohibits
offensive content in online environment. According to the present section, if
the content applications service provider,
or other person using a content applications service shall not provide content
which is indecent, obscene, false, menacing, or offensive in character with
intent to annoy, abuse, threaten or harass any person, shall be treated as an
offence, and shall be liable to
imprisonment for a term not exceeding one year or to a fine not exceeding RM
50,000 or to both. It further states that if such convicted person continues in
committing same offence, he shall be liable to a further fine of RM 1000 for
every day during which the offence is continued after conviction.
Additionally, section 233 of the CMA 1998 imposes prohibition on improper
use of network facilities or network service. The use of network facilities or network services in an
inappropriate manners stated in the present section is an offence under section
233 and will be punished with same punishment as mentioned for offence under
section 211.[xxii]In order to
constitute an offence under section 233,
by means of any network facilities or network service or applications service
knowingly
Moreover, the Penal
Code, as a general substantive criminal law in Malaysia, treats defamation as
an offence in chapter XXI (sections 499-502). Defamation prescribed in section
499 of Penal Code is punishable with imprisonment for a term which may extend
to two years or with fine or with both.[xxiii]Malaysian Penal Code was borrowed from Indian Penal Code which was
drafted in the line of principles laid down in English criminal laws. Section
40 states that any offences inserted in any other laws are also subject to
chapter IV of PC[xxiv] unless otherwise directs expressly. In addition, action can also be
taken for any defamatory matters under tort[xxv]law in Malaysia.
In order to establish successfully a prima facie case of defamation in
court of law, the following four elements are generally required:[xxvi]
For the purpose of
controlling cyber crimes including defamation committed in cyber environment,
the Information and Communication Technology Act 2006 (hereinafter called ICTA)
was enacted in Bangladesh. Section 57 of the present Act criminalizes any
deliberate publishing or transmitting or causing to publish or transmit in the
website or in electronic form any material which is fake and obscene or its
effect is such as to tend to deprave and corrupt persons who are likely, having
regard to all relevant circumstances, to read, see or hear the matter contained
or embodied in it, or causes to deteriorate or creates possibility to
deteriorate law and order, prejudice the image of the State or person or causes
to hurt or may hurt religious belief or instigate against any person or
organization, then this activity of his will be regarded as an offence, and
shall be punishable with imprisonment for a term which may extend a minimum of
7 years and a maximum of 14 years or with a fine which may extend to BDT 1
crore (10 millions) or with both.[xxvii]
BRIEF CASES ANALYSIS
Dato' Mohamad Salim Fateh bin Fateh Din v
Nadeswaran a/l Rajah (No 1)[xxviii]The plaintiff, a prominent businessman, sued the defendant, a
well-known columnist, for publishing two defamatory statements made about him
on Twitter. One of them was The land thief is trying intimidation! I
love a good battle! War is now declared. Ill take him on. The
plaintiff argued the postings made by the defendant could be read by anyone who
accessed his website, and he had thousands of followers of his Tweets, among
them prominent corporate figures, politicians and media personalities. The
plaintiff said the defamatory statements damaged his reputation and caused him
extreme embarrassment and distress. As a result, the plaintiff claimed damages
including aggravated damages and an injunction to restrain defendant from
further publishing or causing to be published any similar words defamatory. No
defense was filed by the defendant; hence, the case was decided ex parte.
The defendant was ordered to
pay total RM 500,000 (£101,000) damages
by the High court in Kuala Lumpur, and an injunction against the
defendant was granted to refrain from further publishing the defamatory
statements or any similar defamatory statements. As the defendant has served no
defense, he was deemed to have admitted all averment as contained in the
plaintiffs statement of claim. In considering the amount of damages to be
awarded in light of the defendant's conduct in failing to apologize and to
withdraw the offending statements from his website which remained there right
up to the date of the hearing,[xxix]the Judge stated that the defendant had more than 4,000 followers
and any number of casual drop ins would naturally see heavy traffic and the court is thus of the view that the
defendant should exercise a greater degree of care over his tweets knowing full
well that it could and would be seen by many.[xxx]
In Malaysia, this is
the first Twitter defamation claim and a
landmark case where online defamation was justified by the court of law. This
case was covered in various news reports in Malaysia, in particular, in
the Sun Daily and the Star in the form of a comment Think before you Tweet.[xxxi]The attitude of Malaysian court is very positive in respect of the
defamation on online platforms. It might be argued that by this decision the
right to freedom of speech is being
restricted, but it must be borne in mind that the freedom of speech on online
must not unreasonably and adversely affect another persons well-being and
interests, like to the physical world.[xxxii]If the appeal was preferred, judgment debtor
might argue on the ground of essential requirements to establish a defamatory
claim. As it was made by higher judiciary, it is still a binding decision as no
appeal was preferred.
National Union of Bank Employees v NoorzeelabintiLamin and Anor[xxxiii]In this case some defamatory comments were published to all the
defendant's friends on Facebook
and also to all others who could have access to view the defendant's Facebook page. The plaintiff case
was that by reading comments made by the defendants, anyone would think that
the plaintiff is a dishonest union who cheats its members; that the plaintiffs
are all dishonest and have their own agenda; that the plaintiff does not pay
its members from the Benevolent Fund; that the plaintiff's misappropriates the
monies; and that the plaintiffs are corrupt; that the plaintiff is incompetent
in serving its members. Therefore, the plaintiff argued that their reputation
was damaged due to making these comments, and claimed damages.
The court ordered to pay damages as well as granted an order
restraining the defendants from publishing and/or causing to issue similar
libels in future. On defamatory statements on Facebook webpage, the Court
opined that
this is equally serious. In this day of social media networking,
a comment posted on one's Facebook page
has the ability to reach a large number of persons in a short space of time.
The comments of the defendant which are read by her Facebook friends can in turn be read by their friends, depending
on the privacy settings.[xxxiv]After due consideration of the evidence adduced by both parties, the
Court found that the plaintiff has succeeded in making out its case against the
defendants on a balance of probabilities.
In a case, a person
posted a defamatory and threatening statement against Prime Minister of
Bangladesh in his Facebook profile. He was charged under section 57 of the
Information and Communication Technology Act 2006 for committing cyber
defamation. He was tried expartee as he didnt serve his defense. On January 4,
2012 the High Court Division sentenced him to six months in jail for
disregarding a court summons and contempt of court rule in connection with
derogatory comments on the prime minister on Facebook.[xxxv] It was not possible to implement such punishment as alleged offender
lives outside of the country, although the court directed the foreign secretary
to take steps to bring accused. In another case where on April 23, 2012 a
complaint was filed accusing Hafizur Rahman Rana for issuing death threat to
Prime Minister on his Facebook wall. On September 20, 2012 the charges against
accused were framed and decided to try him in absentia as he did not appear in
the court. On 27th June 2013, Dhaka Metropolitan Sessions Judge
sentenced the accused in his absence to five years under section 57 of ICTA
2006 for publishing fake, obscene or defamatory information in electronic form,
and to two years under section 506 of the Penal Code for criminal intimidation.[xxxvi] This is a historic verdict as it is the first ever judgment under the
ICTA 2006. On 8 October 2013 another allegation was made against Mr.
Wahiduzzaman for posting defamatory statement in Facebook against the son and
sister of Prime Minister made on August 22 in the same year. He was arrested
and is still in jail, and the charge against him was framed under ICTA for
making defamatory statement.[xxxvii] In all of the stated cases brought before the court under ICTA 2006,
defamatory comments were made against political figures of ruling party. From
these incidents, there is a chance of realisation that law enforcement agencies
might be influenced as political bias could be involved in the proceedings.
In early 2013, some
social networking sites users started to use defamatory statements on social
media against the religion of Islam. The government formed a committee to track such users. Four anti-Islamist bloggers and
Facebook users have been arrested in different areas in the capital on
suspicion of making derogatory comments about Islam. On 09-09-2013, the Dhaka
Metropolitan Sessions Judges Court has charged four in two cases under
sections 57(1) & 57(2) of the ICTA for inflammatory write-ups and hurting
religious sentiments in online platforms (for hurting religious sentiments).[xxxviii]However, the proceedings of the two cases were challenged in the High
Court Division, and on February 16, 2014 the court ruled a stay of proceedings
for three months.[xxxix]This is the first time any accused has been charged under the ICTA
after it was amended. If their guilt is proved, they could be awarded between
seven and fourteen years in prison or to fine upto BDT 10 million or both,
under the amended provisions.
COMPARATIVE ANALYSIS
European Councils
Convention on Cyber Crime 2001 is
the first international treaty on crimes committed via the Internet. It is not
a global convention, but considered as a regional treaty although some
Non-European countries are parties to it. It is only one convention bearing
international characters on cybercrimes. Although the convention provides a
legal framework for the protection of society against cyber crime, it is silent
on making offensive statement particularly cyber defamation as they are more
concerned on cyber crimes in serious nature. Hence, it may be difficult to
analyze and evaluate the issues relating to defamation in cyber space in the
light of international legal provisions. The national constitutions of both
jurisdictions guarantee freedom of speech and expression as a conditional human
right.[xl] It is also recognized no one can violate the rights of others in the
exercise of his or her rights.[xli]It is undeniable that defamation is being committed in online social
networking websites particularly in Facebook and Twitter through making or posting
statements defaming others or hurting religious sentiment of others, therefore,
Malaysian CMA 1998 and ICTA 2006 of Bangladesh are relevant to analyze and
examine for this paper. Moreover, the Penal Code and Tort law of both
jurisdictions are also come within the purview of present evaluation.
Both of the
territories have enacted regulations to control cyber crimes including
defamation in cyber space. In Bangladesh, among others, the defaming
information in electronic form is considered serious offences as per the
amendments made in 2013 as punishment for defamatory statement has been
increased showing its seriousness.[xlii]The present cyber law of Bangladesh also authorizes law enforcement
agencies to arrest the alleged offender without warrant. However, Malaysian
stance is better comparatively as they are trying to remove legal obstacles on
the relevant issues through making amendment in relevant substantive as well as
procedural legal frameworks.
In Bangladesh, the provision of section 57 of ICTA covers online
defamation including defamation in Facebook and Twitter as the terms
in the
websites or it the electronic form
.. have been used in present provisions.
Similarly, defamatory statements used in any SNSs will be treated as an offence
under section 211 or/and 233 of CMA in Malaysia. Sedition[xliii] in the terms of prejudice the image of the State, and hate law or
law protecting religious sentiment in the terms of causes to hurt or may hurt
religious belief are covered under the same provisions of the ICTA of
Bangladesh, unlike Malaysia as they have separate regulations dealing with
these, that is, the Sedition Act 1948. A person found guilty of sedition under
this Act may be imprisoned to three years in jail, or to fine RM 5,000, or both.[xliv] It criminalizes speech with seditious tendency,[xlv] and it is immaterial to
constitute an offence whether seditious statement is true or false.[xlvi]The most recent charge framed under this Act is the case of the five
speakers in a particular forum and a woman who allegedly spoke against the Yang
Di-Pertuan Agong on Facebook.[xlvii]
Both Bangladesh and Malaysia adopted Indian Penal Code set out same
provisions regarding criminal defamation still bearing the same punishment. To
control the said issues, both jurisdictions made special laws which prevail on
general law. If defamation is committed in any online platform and if it is not
possible to take action due to certain deficiencies in special one, criminal
action can be taken against the offender under the Penal Code as it does not
mention any platforms to constitute defamation. There is no specific blasphemy law[xlviii] in both territories, but they curbs blasphemy and any insult to any religion by the provisions of the Penal Code as
it provides penalties for offenses against religion.[xlix] Additionally, Malaysia punishes such transgression with Shariah when applicable. Hence, any statement in online platform including
Facebook and Twitter made against Islam as well as any religion is punishable
under several laws of Malaysia and Bangladesh.
Legislative position of both jurisdictions is positive; undoubtedly
these are good trend to control crimes in cyber space. However, these are not
loopholes free. Although the purpose of the CMA is hard i.e. to prevent this
type of serious crime the CMA was made, by using the terms with intent to
annoy
. in relevant provisions of the CMA, it became soft in nature. Due to
use these terms, defamatory statements makers or publishers will try to take
chance of doubt from those, on the other hand, the relevant provision of the
ICTA does not incorporate these types of terms in respect of the defamatory
issues.[l]
Another issue is that both the CMA and the ICTA incorporate the
provisions of extraterritorial jurisdiction as these are supposed to be applied
to crimes committed all over the world,[li] but it is unknown how this can be achieved in practice.
Moreover, ISP stands for Internet Service Provider facilitates
internet services. Without their facilitation, no commission of crime is
possible as they have control on internet content. Although, section 233 does not mention ISPs
name, it implies ISPs liability as it has used the term
who permitting a
network service
...[lii] Similarly, in section 114A of Evidence Act 1950 Malaysia the wards
who in any manner facilitates to
are used which indicates ISPs liability,
whereas, Bangladeshi law is silent on this issue. It is not ambiguity free as
there is no express and direct provision as to ISP liability.ISP should also
carefully consider potential exposure to defamation actions when they offer any
kind of content service. Such services attract customers, but may also expose
the otherwise exempt ISP operator to defamation lawsuits if not carefully
monitored.[liii]
Enforcement Mechanisms
No matter how good a law is, if there is no enforcement mechanism, it is
dead letter. The laws of both jurisdictions tried to set up various enforcement
mechanisms to fill up these relevant gaps. The ICTA authorizes the police to
arrest without warrant for the purpose of effective enforcement by way of
inserting offences as cognizable. In
2013, the ICTA established a first track process in the form of cyber tribunal
which acts under its parent law dealing with cyber crimes in Bangladesh. Less
political will is one of the dilemmas in the enforcement of any laws shown in the attitudes of legislature as special tribunal has been
established after long time as the ICTA was passed in 2006. Law enforcement
agencies comparatively have little expertise on cyber issues.
Section 114A of Malaysian
Evidence Act 1950 deals with burden of proof of online publications. Unlike the
principle of presumption of innocence, it lays down that the accused will be
presumed guilty until otherwise proved, hence, burden of proof lies on accused.
In order to encourage easier and speedy
enforcement of laws, section 114A was inserted in the evidence law. Issue is whether information from internet is
document or not? Sections 90A, 90B and 90C of Evidence Act of Malaysia deals
with admissibility of information obtained from the internet. Section 90A &
explanation 3 of section 62 says that a document produced by a computer or
statement contained in such documents, during ordinary course of its use, is a
primary evidence. The present provision does not say about computer printout
(printout information from internet). However, the internet will come under
definition of computer given in law as it being a device for storing
information as the terms
.that
whatever name or description such device is called have been used in
definition of computer.[liv]
The ICTA made electronic data produced by computer, for example,
e-mails as admissible evidence,[lv]conflicting with the countrys Evidence Act 1872 which does not
recognize the same as evidence. By contrast, Malaysia resolves it by inserting
sections 90A, 90B & 90C in Evidence Act 1950.It may be argued that Evidence
Act of Bangladesh does not prohibit e-data, how can it be said that it is not
recognizing the same. Interpretation clause of Evidence Act defines document
as any matter expressed or described upon any substance by means of letters,
figures or marks, or by more than one of those means, intended to be used, or
which may be used, for the purpose of recording that matter.[lvi]Whether online platform is a substance or not is an unsettled issue.
Moreover, it is difficult to state from various explanations and illustrations
of Evidence Act as well as from legislative background that legislature
intended to consider e-information as evidence, thats why Malaysia inserted the
specified sections. Due to facing similar problems, India also inserted section
65B in its evidence law which recognizes electronic records as admissible
evidence.
In 2006, an English
court in Keith-Smith v Williams confirmed that the existing libel law applies on net.[lvii] Similarly, the attitudes of judiciaries of Malaysia and Bangladesh
are also positive as the crimes committed on online platforms specifically
Facebook and Twitter are being enforced in the court of law. The number of
Facebook and Twitter users in Malaysian experiences might be equal as in both
facebooking and twitting cases are being brought before the court of laws,
whereas almost all cases regarding cyber crimes including cyber defamation and
religious insult committed due to misuse of Facebook were come before the
judiciary of Bangladesh.
Defamation committed in Twitter and Facebook
is well established in Malaysia by judicial precedents, that is to say, some
cases have already been decided by the High Courts. The cases brought before higher judiciary in Malaysia who makes binding
precedent, unlike Bangladesh scenario. In Bangladesh, the trend to come before
the court on said issues are started recently and almost all cases are pending
before lower courts and very few cases decided by trial court. If these cases
will go to higher court by way of appeal or by any lawful application, it is
thought that issues will be considered in the same line as it was thought by
the Malaysian judiciary.
In order to establish a defamation case in the court of law, the
claimant has to prove that the defendant made a false and defamatory statement
concerning the plaintiff which is injurious to him, and published it
negligently which was unprivileged.[lviii]In the case of Ayob bin Samad v TS Sambanthamurthi, Mohamed
Dzaiddin J. held that in defamation cases,
the burden lies on the plaintiff to prove that the statements or words bearing
a defamatory meaning; the statements or words referring to the Plaintiff; and
the statements or words which formed the subject matter of the action had been
published.[lix] If the statement is true, the person against whom statement was
published doesnt have grounds to sue, even if it damaged his or her
reputation. Therefore, it can be stated that like a real world defamatory
claim, same legal requirements should be taken into consideration by the courts
to decide a defamation matter on any online platform including Facebook and
Twitter.
It is undeniable that
with the advance in the world, internet is becoming popular day by day and its
use has rapidly expanded in Malaysia as well as Bangladesh. The growth of SNSs
shows a significant change in the social behavior of Internet users because of
their some special features. It should not be disagreed that the several
advantages of social networking through various ways as it develops social
contract or relationship among the people (users), helps to enforce laws, such
as law enforcement agencies may use SNSs to catch offender and to implement
laws,[lx]and spreads knowledge through sharing status. In many regards, Twitter
has revolutionized modern communication,[lxi] as well as Facebook lies on the similar footing. Hundreds of
thousands of their users are using these platforms every day to connect with
others, to see others views as well as to share their own views. Although
there is important significance of SNSs in particular Facebook and Twitter as
bearing a lot of benefits, the misuse of SNSs leading to cyber crime including cyber defamation can also not be
denied. Facebook and Twitter are playing role in committing as well as
in preventing crimes. Hence, not only the use but also the users should be
regulated in an acceptable manner. The importance of online social networks is
not denied in any way. It is also not being said that the use of SNSs should be
stopped or there should not be any right to express, but restriction on the use
is being imposed through regulation. The basis is no one can exercise his or
her right by violating others rights, in other words, you have right to express
anything but cannot harm others. How can the content of Facebook and Twitter in
Bangladesh and Malaysia be regulated? How can we control offensive statement
including cyber defamation committed due to misuse of SNSs?
The court views on the defamatory statement or twibelous statement
made on online SNSs is positive in a sense as the trend is being changed
through applying the laws on online environment. Actually judicial activism is
very important to establish any cyber crimes committed in cyber space. To some
extent, facebooking or twitting play a role as virus;[lxii]hence, legal instruments or directions can act as an anti-virus to
remove such virus acting in the form of cyber crimes. Although there are
national laws regulating cyber crimes including cyber defamation, the enactment
of a international convention bears importance in order to harmonize such laws
as it has become global issues on anonymous. Apart from online anonymity i.e.
the lack of need of identification complicating online defamation,
extraterritoriality is another issue at global level. Alternatively, General
Assembly of United Nation may introduce an international body by a resolution
as it established the UNCITRAL in 1966 by a resolution 2205 (XXI). Even if the
output is a model law, it can also be fruitful as the UNCITRAL Model Laws on
different subject matters are witnessing in the world.
Moreover, now that no relevant international law exists and States
have taken action through enacting regulation but there is existence of various
lacking, hence, the amendment of existing laws is needed. Lessig (2006)
addressed four elements in order to control something, such as, laws,
norms/policies, market and architecture.[lxiii]Before making any laws regulating cyber crimes, these four things
should be taken into consideration. Such amendment should contain satisfactory
evidentiary standards, effective and strong enforcement mechanisms as law
without enforcement is valueless. In order to do that, certain reforms of
procedural laws especially of Bangladesh are needed. In Malaysia, civil courts
should be given a concurrent jurisdiction.
As early stated that there is very rear application of torts law in
Bangladesh, and the tribunal established by virtue of section 68 of the ICTA
2006 only can impose imprison and fine as unlawful activities under present Act
is treated as criminal offences, it should be given power to provide damages
under the present laws. It is opined that civil remedy is better to get justice
as the provision is balance of probability rather than criminal as it must be
proved beyond reasonable doubt.
It is also necessary in both jurisdictions to make clear by
establishing legal provisions to regulate who exactly will be held responsible
for defamatory statement. It is thought that the liability of ISPs should be
enhanced. They should be regulated and monitored properly as they have
editorial control over the publication of defamatory statement. They can be
watched by an authority which might be established to act as watchdog. The Bangladesh Telecommunication Regulatory
Commission (BTRC) already has set up a cybercrime watchdog unit to monitor
harmful content or activities on the Internet including SNSs and mobile
platform.[lxiv]Furthermore, it is mentioned in the policy of SNSs including Facebook
policy and Terms of Service of Twitter,[lxv]that users will not post content or take any action that infringes or
violates someone else's rights or otherwise violates the law
, and that
responsibility lies on one who originated such offensive content
....[lxvi] Unsettled question is by inserting these provisions whether they can
be exempted from their liability of monitoring and removing illegal contents.
Apart from those, as mentioned earlier that one of the universal problems as to
cyber crimes also relevant to crimes due to misuse of social network is
anonymity.[lxvii] Although there is an IP address to identify user and place of use,
the use of internet in cyber cafι is still an issue. Bangladesh has initiated a
measure by issuing an announcement to cyber cafι service provider to collect
name and address of users. Law
enforcement agencies of Bangladesh having no proper knowledge on enforcement of
cyber crimes law, therefore, the
government is planning to provide proper training to them. It is also suggested
that the judiciary must be trained to evaluate possible harmful effects of
social media.[lxviii]
Law is not only tool or forum to solve a problem. Apart from law,
alternatively, distributed security approach to prevent cyber crimes including
crimes in social networks can be adopted. Distributed security is a strategy to
control cyber crimes, and this new mode cannot rely on sanctions, but must
instead turn the distributed nature of cyber crime on its head.[lxix]Distributed security approach can also be known as holistic approach.[lxx]Under this model, laws and law enforcement agencies are not sufficient
to control any crime committed in cyber space. Hence, agencies, users, ISP and
so on, have roles to play in controlling cyber crimes including cyber
defamation. For example, ISP is considered as a door to access in the internet.
They can set filters, and help agencies to identify users who are misusing. It
is not said that the distributed security approach is only solution rather
along with laws and policies, this new approach can also be adopted to control
cyber crimes.[lxxi]
[i] Das, B., & Sahoo, J. S. (n.d.). Social Networking Sites-A Critical
Analysis of Its Impact on Personal and Social Life. International
Journal of Business and Social Science(2.14). 222.
Retrieved from www.ijbssnet.com
[ii] Retrieved from
http://www.quintly.com/blog/2013/05/Facebook-country-statistics-may-2013/
(2013, November 15)
[iii]Retrieved from
http://www.telegraph.co.uk/technology/Twitter/9945505/Twitter-in-numbers.html
(2013, November 12); Retrieved from
http://www.mediabistro.com/allTwitter/tag/total-Twitter-users(2013, November
12)
[iv]Retrieved from
http://www.theborneopost.com/2013/06/16/13-3-million-msians-are-Facebook-users/(2013,
December 31)
[v] Retrieved from
http://www.forest-interactive.com/Twitter-users-2013/(2013, November 12)
[vi] Retrieved from
http://wearesocial.net/tag/statistics/(2013 November 12)
[vii]European Network
and Information Security Agency (ENISA).(2007, October). Securities Issues and Recommendations for
Online Social Networks. p.3. in Munir, A. B. & Yasin, S. H. (2010). Information and Communication Technology
Law: State, Internet and Information; Legal and Regulatory Challenges.Selangor:
Sweet & Maxwell Asia. p.83.
[viii]Kwasniewski, B. W. (2011, March 30). Social
Media: An Emerging Issues in the Workplace. Charity Law Bulletin, 246.
[ix] Retrieved from
www.wikipedia.com
[x]Kwasniewski. (2011).
[xi] Nicolos,
E.(2010). A Practical framework for preventing mistrial by Twitter. Cardozo Arts & Entertainment. 28. p.
385.
[xii] Kelley, B. J.
(2013). Tortious Tweets: A Practical Guide to Applying Traditional Defamation
Law to Twibet Claims. Louisiana Law Review. 73. p.559.
[xiii]Retrieved from
http://www.mondaq.com/india/x/28603/technology/Cyber+Crimes+an+ unlawful
+act+where+in+the+computer+is+either+a+tool+or+a+target+or+both> (2014,
January 1)
[xiv] Kelley. (2013).
[xv]Halsbury's Laws of England. (para. 10, p.
7.). (4th ed.).
[xvi] Kelley (2013)
quoted it by referring other sources.
[xvii] Stephenson, P.
(2007). Cyberlaw in Hong Kong. Hong
Kong: LexisNexis. p.51.
[xviii]Rahman, M. S. (2013). Cyber Crime, Cyber Security and
Bangladesh. Retrieved from
http://teletechblog.blogspot.com/2013/05/cyber-crime-cyber-security-and.html
[xix]Kumar, R. (2009,
November 6). Cyber Defamation-Position in India. Retrieved from
http://jurisonline.in/2009/11/cyber-defamation-%E2%80%93-position-in-india/
[xx]The Computer
Crimes Act 1997. ss.3 & 5.
[xxi]The Communication
and Multimedia Act 1998. Long title.
[xxii]Ibid. s. 233(3).
[xxiii]The Penal Code.
s. 500.
[xxiv] Chapter IV of
Penal Code lays down about general defenses or general exceptions of offences
prescribed in the Code.
[xxv] Tort is a civil
wrong where remedy is only damages (monetary compensation). It must not be
confused that in Malaysia, basically the principles of tort are taken from
English law, but not from French tort law.
[xxvi]Retrieved from
http://injury.findlaw.com/torts-and-personal-injuries/elements-of-libel-and-slander.html#sthash.fTwUgMF0.dpuf
(2013, December 19).
[xxvii]The original section 57 prescribed maximum imprisonment of 10 years and
of fine of 1 crore taka. By virtue of the Information and Communication
Technology(Amendment) Act 2013, penalties for cyber crimes was increased by
setting a minimum of seven years imprisonment and a maximum of 14 years or a
fine of Tk 1 crore or both.
[xxviii][2012] 10 MLJ
203; [2012] MLJU 391.
[xxix]Dato' Mohamad Salim Fateh
bin Fateh Din v Nadeswaran a/l Rajah (No 1) [2012] 10 MLJ
203; [2012] MLJU 391, at para 63.
[xxx]Ibid. para 64.
[xxxi]Retrieved from http://inforrm.wordpress.com/2012/04/29/malaysia-journalist-ordered-to-pay-100000-damages-in-Twitter-libel-case/(2013,
December 21)
[xxxii]Retrieved from http://www.greyreview.com/2012/04/27/first-malaysian-ordered-by-court-to-pay-rm500000-libel-damages/
(2014, January 1).
[xxxiii][2013] MLJU 531.
[xxxiv]Ibid. para. 149.
[xxxv] Death Threat to
PM on Facebook, Former BUET teacher gets 7yrs in jail. (2013, June 28). New Age (Online Ed.). Retrieved from
http://www.newagebd.com/detail.php?date=2013-06-28&nid =54778#. UyCL5IXXiOp
(2014, March 13).
[xxxvi] Ibid.
[xxxvii] The report was
published on 10th February 2014 in bangle in http://tazakhobor.com
[xxxviii] Retrieved from
http://www.globaltimes.cn/content/809498.shtml#.Ur1i4VGczIU(2013, November 20 )
[xxxix] The news of this
stay proceedings was published on 16th February 2014 in bangle in http://www.banglanews24.com
[xl]The Constitution
of the Peoples Republic of Bangladesh 1972, art. 39; TheFederal Constitution of Malaysia1957.
art. 10.
[xli]The Universal
Declaration of Human Rights. art.29(2).
[xlii]ICT (Amendment)
Act 2013. s. 57.
[xliii]Informally,
it may be known as defamation against government or State. A
definition of sedition found as the conduct or language inciting rebellion
against the authority of a state. It is considered a subversive act, and the overt acts that may be
prosecutable under sedition laws vary from one legal jurisdiction to another.
Retrieved from http://www.freemalaysiatoday.com/category/opinion/2013/07/21/how-to-avoid-being-seditious/
[xliv] The Sedition Act
1948. s. 4(1).
[xlv]Retrieved from
http://www.freemalaysiatoday.com/category/opinion/2013/07/21/how-to-avoid-being-seditious/
(2014, December 1).
[xlvi]PP v Oh Keng
Seng [1978].
[xlvii] Retrieved from
http://www.freemalaysiatoday.com/category/opinion/2013/07/21/how-to-avoid-being-seditious/
[xlviii] Wikipedia
defines it as a law limiting the
freedom of speech and expression relating to blasphemy, or irreverence
toward holy personages, religious artifacts, customs, or beliefs. This law
forbids hatespeech or religious
insult.
[xlix] The Malaysian
Penal Code. ss. 295-298A; The Bangladesh Penal Code. ss. 295-298, both deal
with offences against religion.
[l] The CMA. ss. 211
& 233; The ICTA. s. 57.
[li] The CMA. s.
4(1); The ICTA. s. 4(1).
[lii]The CMA. s.
233(2).
[liii] Townsend, A. M., Aalberts, R. J. &
Gibson, S. A. (2000). Libel and Slander on the Internet. Communication
of the ACM. (43.6). p. 15.
[liv] Fenn, L. M.
(2006, November/December). Admissibility of Evidence: Information obtained from
the internet. Tay& Partners.
Retrieved from www.taypartners.com.my
[lv]The ICTA. s. 13.
[lvi] The Evidence Act
1872. s. 3.
[lvii] Retrieved
from http://www.theguardian.com/media/2006/mar/23/digitalmedia.law (2014,
January 2)
[lviii]Retrieved from
http://injury.findlaw.com/torts-and-personal-injuries/elements-of-libel-and-slander.html#sthash.fTwUgMF0.dpuf
(2013, November 11)
[lix][1989] 1 MLJ 315;
[1989] 1 CLJ 152; [1989] 1 CLJ (Rep) 321; See also Dato' Seri Mohammad Nizar Bin Jamaluddin v SistemTelevisyen Malaysia
Berhad&Anor [2013] MLJU 272.
[lx] Polices of one
of the police station using Facebook officially as an informant sources of
offences. Retrieved from https://www.Facebook.com/acpatroluttara.
[lxi] Kelley.(2013).
[lxii]In a seminar held
in around 2006-2007 at a university situated in Bangladesh where Prof Dr. Mahtab
Khanam, a well famous psychologist, was treating mobile phone as a virus due to
misuse it very largely. In line with her thinking, I think Facebook is on same
footing like mobile phone as technology/internet is cheapest and devices are
easily portable.
[lxiii] Lessig, L.
(2006). Code version 2.0. New York:
Basic Books.
[lxiv] Retrieved from http://www.zdnet.com/bangladesh-sets-up-cybercrime-watchdog-2062303622/
(2014, January 1).
[lxv] Facebook
website. Policy 5; Twitter website.Terms of Service.
[lxvi] Facebook website. Policy 5.
[lxvii] Vamialis, A.
(2013). Defamation: Confronting Anonymity. International
Journal of Law & Information Technology. (21.1). p.31.
[lxviii] Nicolos. (2010).
[lxix] Brenner, S. W.
& Clarke+, L. L. (2005). Distributed Security: Preventing Cyber Crime. J. Marshall
J. Computer & Info. L. 23. p.659.
[lxx]Asia Pacific
Defense Forum. (2012). Cyber Evolution.
USA. (37.1).
[lxxi] Brenner &
Clarke+.(2005).
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