Malaysia's '114A' law makes brands liable for comments by consumers

Section 114A, an amendment to the Evidence Act came into effect on 31 July, is designed to enable law enforcement officials to swiftly hold individuals accountable for harmful internet content.

According to the Stop114A website, the amendment presumes that individuals are guilty if defamatory content can be traced to their username, electronic device or WiFi network.

Malaysian activists and bloggers staged an "Internet Blackout Day" on Tuesday 14 Aug to protest the law. Prime Minister Najib Razak later instructed the cabinet to review the law.

The case has parallels to an earlier ruling in Australia, where the Advertising Standards Board said that a brand’s Facebook page falls into the realm of advertising and therfore the comments left on that page are subject to the regulations that govern traditional advertising.

Malaysia's Evidence Act covers both civil and criminal proceedings, so it means anyone can sue any company for just about anything deemed defamatory or seditious. According to industry experts, that can put brands into a situation where they are legally liable for anything posted on their website or social-media channels.

Independent online news portal Malaysiakini said in a statement on its website that the law would erode freedom of speech online. “In other words, if defamatory comments are posted on a blog, the blog owner is likely to be sued or charged with criminal defamation,” the website said.

Amit Sutha, head of Proximity Malaysia, said censorship is antihetical to the internet. “People who work closely with the internet don’t even know how to censor,” he told Campaign Asia-Pacific. “It is a self-generated platform. It is built, changed and modified by the people. Not many people make the right point, but it is impossible to blame the people who own the media.”

He noted that some 80 per cent of the brands his agency is working with have a social-media presence and allow users to interact with them directly.

A. Asohan, executive editor at Digital News Asia, said because social media is now a very big part of business worldwide, the law will have a chilling effect on its role, which is about engagement and conversation.

“Everyone would be looking over their shoulders, wondering if what they’re saying could open them up to legal action,” he told Campaign Asia-Pacific. “Many established companies are already using social media for many of their marketing campaigns, but they may now have to review these to determine their culpability for any content generated in such campaigns.”

This also means brands will have to spend more time and resources on digital campaigns and websites they and their business partners run, for end-to-end monitoring.

“This sounds incredible, but that is the way the amendment has been worded,” said Asohan, who was also previously senior manager, public relations at Microsoft Malaysia. “Brands are ‘facilitating’ the publication of any content on their channels, and are deemed the publisher of said content. Just about all in the supply-chain are legally liable—the company that set up the brand site and even the network service providers they and their customers use.”

Sutha added that the law would transform digital communication into a one-way communication medium.

“It is difficult for brands,” he added. “After all, it will affect the people first before affecting the brand. It means the end of consumer interaction, or some brands won’t allow consumers to write in.”

Brands might subsequently see lack of participation in any campaign, as the level and rate of engagement and interaction could be affected when a culture of fear is being engendered.

Asohan, referring to a McKinsey study that predicted the era of social media will give rise to five times as many new job types as did the internal IT revolution, said the law threatens to put up barriers to businesses in Malaysia adopting and encouraging social media use within their organisations.