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Political Blogs and Freedom of Expression: A Comparative Study of Malaysia and the United Kingdom Nazli Ismail Nawang PhD in Law – The University of Edinburgh – 2013 Table of Contents Table of Contents i Abstract v Declaration vi Acknowledgement vii Abbreviation viii 1.1 Overview and Rationale of the Study 1 1.2 Research Objectives 4 1.3 Methodology and Sources 6 1.4 The Structure of Study 12 2.1 Introduction 15 2.2 Brief History of Blogs 17 2.3 Definition of Weblogs or Blogs 22 2.4 Nature and Importance of Blogs 27 2.5 Political Blogs & Democratisation in Malaysia 33 2.6 Conclusion 37 3.1 Introduction 39 3.2 Origin of Freedom of Expression 40 3.3 The Meaning of Freedom of Expression 45 3.4 The Scope of Freedom of Expression 53 3.5 Political Expression 55 3.6 Restrictions on Freedom of Expression 60 3.6.1 Permitted Grounds of Restrictions 62 3.7 Legality of Restrictive Laws on Freedom of Expression 66 i 3.7.1 The Phrases ‘Necessary or Expedient’ 69 3.7.2 Constitutional Interpretation 71 3.7.3 Reasonableness of Restrictions on Freedom of Expression 78 3.7.4 The Test of Reasonableness 80 3.8 Application of Freedom of Expression to Political Blogs 88 3.9 Conclusion 91 4.1 Introduction 93 4.2 The Position of Freedom of Expression in the United Kingdom 94 4.2.1 Pre the Human Rights Act 1998 (HRA) 96 4.2.2 Post HRA 101 4.3 The Meaning and Scope of Freedom of Expression 112 4.4 Political Expression 118 4.5 Restrictions on Freedom of Expression 120 4.5.1 Prescribed by Law 122 4.5.2 Legitimate Aim 125 4.5.3 Necessary in a Democratic Society 125 4.6 Application of Freedom of Expression to Political Blogs 129 4.7 Conclusion 140 5.1 Introduction 142 5.2 Overview of Statutory Controls of the Media in Malaysia 143 5.3 Print Industry 147 5.3.1 Historical Background of the Regulatory System of the Press 147 5.3.2 The Printing Presses and Publications Act 1984 148 5.3.2.1 The Licensing System of the Press 148 5.3.2.2 Content Regulation 157 5.3.3 Application of the Press Regulatory System to Political Blogs 160 5.4 Broadcasting Industry 161 5.4.1 Historical Background of the Broadcast Media in Malaysia 161 5.4.2 Legislative Framework of the Broadcast Media 163 ii 5.4.3 The Communications and Multimedia Act 1998 164 5.4.3.1 Malaysian Communications and Multimedia Commission 165 5.4.3.2 The Licensing System of the Broadcast Media 167 5.4.4 Application of the Broadcast Regulatory System to Political Blogs 170 5.5 Internet Industry 172 5.5.1 Overview of the Internet Industry in Malaysia 172 5.5.2 The Internet Governance in Malaysia 174 5.5.2.1 The Licensing of the Internet Service Providers (ISPs) 174 5.5.2.2 No Censorship of the Internet Policy 175 5.5.2.3 Regulation of the Online Content 178 5.5.3 Application of the Internet Regulatory Regime to Political Blogs 181 5.6 Conclusion 184 6.1 Introduction 186 6.2 Print Industry 187 6.2.1 Overview of the Regulatory System of the Print Industry 187 6.2.2 Independent Press Standards Organisation (IPSO) 189 6.2.2.1 IPSO’s Remit 189 6.2.2.2 The Editor’s Code of Practice (the Code) 190 6.2.2.3 IPSO’s Sanctions 192 6.2.3 Application of the Press Regulatory Regime to Blogs 194 6.3 Broadcasting Industry 195 6.3.1 Overview and Rationales for Strict Statutory Regulations 195 6.3.2 Regulatory System of the UK Broadcast Media 197 6.3.2.1 The Office of Communications (Ofcom) 197 6.3.2.2 The British Broadcasting Corporation (BBC) 198 6.3.2.3 Licensing of the Broadcast Media 200 6.3.2.4 The Broadcasting Code 201 6.3.3 Application of the Broadcasting Regulatory System to Blogs 203 6.4 On Demand Industry 204 6.4.1 Overview of Video on Demand (VOD) Services 204 iii 6.4.2 Regulatory System of the VOD 205 6.4.2.1 Self-regulation by the Old ATVOD 205 6.4.2.2 Co-regulation by the New ATVOD and Ofcom 206 6.4.3 Application of the ODPS Co-regulatory System to Blogs 208 6.5 Internet Industry 212 6.5.1 Overview of the UK Internet Governance 212 6.5.2 Industrial and Legal Control of the Internet in the UK 212 6.5.2.1 ISPs Liability & the E-Commerce Regulations 2002 212 6.5.2.2 Internet Watch Foundation (IWF) 218 6.5.2.3 Cleanfeed System 224 6.5.3 Application of the Internet Regulatory Regime to Blogs 227 6.6 Conclusion 228 7.1 Introduction 231 7.2 Overview of Defamatory Statement 233 7.3 Libel or Slander 237 7.4 Multiple and Single Publication Rule 246 7.5 Online Intermediary Liability 250 7.5.1 Liability for Third Party Content 250 7.5.2 Liability for Linking 258 7.6 Defences 264 7.6.1 Truth & Justification 265 7.6.2 Honest Opinion & Fair Comment 269 7.6.3 Publication on Matter of Public Interest & the Reynolds Defence 277 7.6.4 Defence to Operators of Websites 285 7.6.5 Innocent Dissemination 287 7.6.6 Electronic Commerce (EC Directive) Regulations 2002 293 7.6.7 Innocent Carrier 301 7.7 Conclusion 303 8.1 Conclusion 305 Bibliography 317 iv Abstract The study is undertaken on the premise that the technological advancement of blogs has not only accorded a novel platform for communication, but has also democratised the right to exercise political expression in Malaysia. Blogs have on numerous occasions outpaced restrictive laws that were enacted to curtail the exercise of this fundamental right and have caused great challenges in applying the existing specific media laws to online content in the blogosphere. The main purpose of the study is to resolve the legal uncertainties faced by bloggers in disseminating political speech under the existing laws of the country and to analyse the legal position in the United Kingdom as a comparative model or reference to the issue. In so doing, the study examines the general principles and restrictive laws to freedom of expression and the application of these rules to political blogs, scrutinises the statutory rules and regulations that are currently being employed to govern the traditional media and the Internet as well as other relevant general legislation, in particular the law of defamation, that has been commonly employed to regulate blog entries and comments by readers in both countries. The study concludes that although offline and online content should not be treated differently and certain regulatory controls are undoubtedly necessary to prevent misuse of political blogs by unscrupulous persons, any legal measures to be adopted by the Malaysian government to govern political blogs should take into account the rapid development of various forms of Internet based communications and be proportionate in light of current needs and the local circumstances of the society. v Declaration I, Nazli Ismail Nawang, hereby declare that this thesis, which is approximately 99,955 words in length, has been composed by me, that it is a record of work carried out by me, and that no part of it has been submitted in any previous application for a higher degree. Signature. 24th October 2013. vi Acknowledgement First and foremost, I wish to express my heartiest gratitude and appreciation to Dr Rachael Craufurd Smith, my first supervisor, for her supervision and encouragement in the preparation and accomplishment of this study. I am also very much thankful to Mr Navraj Singh Ghaleigh, my second supervisor, for his assistance in contributing ideas and comments, and for reviewing a few drafts of the thesis. I am very much grateful to my family, in particular my beloved wife Amalina Abdullah and my four children of the Darwish/ah siblings (Aqil, Nina, Damia and Amir) for their moral and emotional support during our long journey and stay in Edinburgh, UK. Likewise, I am deeply indebted to my parents Haji Ismail Nawang Mat Hussain and Hajjah Hasnah Junus; as well as my parents in law the late Haji Abdullah Che Amat and Hajjah Kamariah Mahmud. Finally I would like to thank all persons who are either directly or indirectly involved in completing this dissertation. vii Abbreviation AC Law Reports Appeal Cases AIR All India Reporter All ER All England Law Reports All ER (EC) All England Law Reports European Cases AMLECON American Law & Economics Association Annual Meetings Admin L Rev Administrative Law Review Am J Comp L American Journal of Comparative Law Annals Pb & Coop Econ Annals of Public and Cooperative Economics Asian J Polit Sci Asian Journal of Political Science Asian Yrbk Int L Asian Yearbook of International Law BCL Rev Boston College Law Review BLR Business Law Review BU J Sci & Tech L Boston University Journal of Science & Technology Law BU Pub Int LJ Boston University Public Interest Law Journal BILETA British and Irish Law Education and Technology Association Ch Law Reports, Chancery Division (3rd Series) CLJ Cambridge Law Journal viii CLJ Current Law Journal (Malaysia) CLJ (Rep) Current Law Journal (Reprint) [Malaysia] CLSR Computer Law & Security Report CLS Rev Computer Law & Security Review CTLR Computer and Telecommunications Law Review CMLR Common Market Law Reports Cal W L Rev California Western Law Review Comms L Communications Law Comp Fr & Sec Computer Fraud & Security Comps & Law Computers & Law Colum JL & Soc Probs Columbia Journal of Law and Social Problems Cov LJ Coventry Law Journal Cult & Relig Culture and Religion: An Interdisciplinary Journal Dev Dialogue Development Dialogue E.D.