The Communications and Multimedia Act 1998 (Act) establishes a regulatory framework for the communications and multimedia industry. Recently, the Communications and Multimedia (Amendment) Act 2024 (Amending Act) was passed by Parliament to introduce amendments to the Act, where the amendments aim to find a new equilibrium between the freedom of expression and the benefits of the digital economy, while ensuring safety and security, especially for children and families.
Suspension Of Content Applications Service
Section 81 of the Amending Act introduces Section 211A to the Act, which empowers the Malaysian Communications and Multimedia Commission (MCMC), the statutory body that regulates the communications and multimedia industry, to issue a direction for a content applications service provider (CASP) to suspend its services for a period of time as specified in the said direction, where:
(i)the CASP has contravened any provision of Chapter 2 of Part IX of the Act;
(ii)the CASP has breached any condition of its individual or class licence relating to content; or
(iii)the CASP has failed to comply with any instrument issued, made or given by the Minister or MCMC relating to content.
Unsolicited Commercial Electronic Messages
The introduction of Section 233A of the Act by way of Section 92 of the Amending Act represents an important step towards addressing the issue of unsolicited commercial electronic messages, better known as “spam”. This provision prohibits a person from sending, causing to be sent or authorising ‘the sending of an unsolicited commercial electronic message in contravention of any provisions of this Act or any regulations under this Act’.
Section 233A would work in tandem with the new Section 16(1)(ha) of the Act, which will empower the Minister to make regulations in respect of the procedures and all matters related to unsolicited commercial electronic messages.
Wider Investigative Powers
Section 248 of the Act currently allows a police officer not below the rank of Inspector to enter premises, inspect and seize evidence without a warrant if they have reasonable cause to believe that any delay in obtaining the search warrant would adversely affect the investigation or evidence of the commission of an offence under the Act is likely to be tampered with, removed, damaged or destroyed.
Section 106 of the Amending Act now seeks to extend this power by substituting the word ‘Inspector’ in Section 248 of the Act with ‘or an authorised officer’. An authorised officer is defined by the Act as any public officer of officer appointed by MCMC.
Further, Section 107 of the Amending Act will introduce a new Section 248A to the Act, which states that a search warrant issued pursuant to the Act will remain valid and enforceable regardless of any defect, mistake or omission in the search warrant or in the application to obtain the same. The new Section 248A will go on to state that items seized under the said warrant will be admissible in evidence in any proceedings under the Act.
Preservation And Disclosure Of Communications Data
The new Section 252A empowers a police officer or authorised officer to issue a written notice requiring service providers to preserve specified communications data where the communications data is reasonably required for the purposes of an investigation and there is a risk that the communications data may be destroyed or rendered inaccessible.
Meanwhile, the new Section 252B authorises a police officer or authorised officer to issue a written notice to the person in control of the communications system to compel the said person to disclose the communications data as specified in the written notice.
Significantly, both provisions go on to state that the recipient of the written notice is not allowed to disclose the existence and content of the written notice, the procedure, method, manner or any matter related to the preservation or disclosure of the communications data without lawful authority.
Penalties
The Amending Act also revises the penalty for offences under the Act. For a clearer illustration, the following table compares some of the changes to the financial penalties for the respective offences under the current Act and after the Amending Act has been enacted:
Provision | Amending Section | Current Fine |
Post-Amendment
|
Section 16 – Minister’s Power to Make Regulations | Section 3 | Up to RM300,000 | Up to RM1,000,000 |
Section 53 – Non-Compliance with Direction of MCMC | Section 13 | Up to RM300,000 | Up to RM1,000,000 |
Section 105 – Non-Compliance with Mandatory Standard | Section 36 | Up to RM200,000 | Up to RM500,000 |
Section 211 – Provision of Offensive Content | Section 80 | Up to RM50,000 | Up to RM1,000,000 |
Section 233 – Improper Use of Network Services | Section 91 | Up to RM50,000 | Up to RM500,000 |
Commentary
Whilst the changes to the communications and multimedia regulatory framework are proposed and implemented with the intent to evolve with the everchanging digital landscape, there is an overarching need to balance them with the need to protect one’s privacy and freedom of expression. New and amended provisions that seek to expand investigative powers with minimal to zero judicial oversight pose a risk to fundamental rights and give rise to a concern that such privileges may be open to abuse. A system of comprehensive checks and balances is crucial to ensure accountability and to prevent overreach.
However, it must be observed that the amendments to the Act have already drawn heavy criticism from various civil rights movements such as ARTICLE 19, Amnesty International Malaysia and Suara Rakyat Malaysia. These groups have highlighted concerns over disproportionate punitive measures and how the amendments might restrict fundamental freedoms, creating a climate where individuals feel hesitant or even fearful to communicate openly.
6 February 2025