Malaysia: Halt legal action against Meta over content moderation

Today, 23 June, the Malaysian Communications and Multimedia Commission (MCMC) issued a statement saying that it intends to take legal action against Meta for perceived inaction to remove allegedly harmful content, including that which involves race, royalty, and religion, along with defamation, impersonation, online gambling, and fraudulent advertisements. The threat of legal action from the MCMC against a social media platform over content moderation decisions such as these threatens intermediary liability principles and the freedom of expression online. The government should refrain from threatening or throttling social media platforms to prevent opposing views from circulating on their platforms, said ARTICLE 19. 

“This will have a serious chilling effect on freedom of expression, especially as victims of this censorship would be left without recourse to challenge or seek redress for the arbitrary removal of critical perspectives”, said Senior Malaysia Programme Officer at ARTICLE 19, Nalini Elumalai.  “It also puts undue pressure on Facebook, as an intermediary, to suddenly bear legal responsibility for third-party content. This would be a concerning decline of internet freedom, all the more so if the authorities attempt to hide their arbitrariness behind the cover of law”.

The MCMC has said that they’ve given numerous warnings to Meta but that the company’s responses have not been satisfactory, thus necessitating further legal action to protect online users. However, the MCMC statement has been issued against a backdrop of individuals being regularly arrested, investigated, and charged for online expression, or expression deemed critical or questioning of the 3Rs (race, royalty, and religion), government or authorities,  in particular under the Communications and Multimedia Act (CMA) 1998, the Sedition Act 1948, and provisions of the Penal Code, which do not comply with international human rights law.

ARTICLE 19 is aware that harmful content on social media platforms can be dangerous and cause real harm. But any restriction on the freedom of expression must be provided for by law, in pursuit of a legitimate aim, and necessary and proportionate. It is never permissible to prohibit expression solely because it casts a critical view on social issues, public figures or government institutions.

The UN Special Rapporteur on freedom of expression has warned that private actors, such as Meta, should not be pressured by legal or extra-legal means to take steps that unnecessarily or disproportionately interfere with freedom of expression and that content restrictions must be adopted in accordance with validly enacted laws, and with due process guarantees by an independent, impartial and authoritative oversight body.

Furthermore, international norms hold that internet intermediaries should be shielded from liability for third-party content as a fundamental principle of protecting the freedom of expression and information online. The Manila Principles on Intermediary Liability hold that any laws on content restriction concerning intermediaries must be necessary and proportionate and respect due process, with clear transparency and accountability mechanisms.

“While social media platforms’ corporate responsibility to protect human rights implies a duty to comply with their own community guidelines, including by moderating content that incites harm, threats and violence, it is also crucial for companies to resist arbitrary pressures from the state when they go against international human rights norms, and do everything in their power to push back against measures that would make them complicit in rights abuses”, said Nalini. “The MCMC, for its part, must retract the possibility of taking legal action against Meta and continue to engage with dialogues and engagement with Meta and civil societies.”