Passage of Online Safety Bill a grave blow to freedom of expression

The Online Safety Advocacy Group (OSAG) and the undersigned civil society organisations strongly condemn the passage of the Online Safety Bill.

The bill was passed after a division was called, with 77 MPs voting in favour and 55 against and despite the opposition coalition asking for it to be sent to the parliament special select committee for further review.

We recognise the need to hold online service providers and social media platforms accountable.

However, instead of providing transparency and accountability mechanisms, many aspects of the bill pose significant risks to freedom of expression, especially in the context of the expansive powers of the Malaysian Communication and Multimedia Commission (MCMC).

1. The absence of an independent oversight body

The MCMC is not independent in law or practice. Yet, excessive power is granted to control and monitor online content and activities under the OSB.

There is a serious possibility of government or political interference as the MCMC receives directions from the communications minister on exercising its powers, functions and duties, whether of a general character or “otherwise” under Section 7 of the CMA.

The recent amendments to the CMA further expand the communications minister’s and the MCMC’s excessive power.

Sections 35, 74, 80 and 81 of the OSB again expand the minister’s and the MCMC’s powers, allowing them to order “authorised officers” to monitor communications and install surveillance devices without proper safeguards. The ability to create subsidiary laws under the OSB removes Parliament’s role in providing checks and balances on these powers.

2. Broad and vague list of different types of ‘harmful content’

Some types of “harmful” content regulated by the OSB are enumerated in the First Schedule [Section 4] and include many types of legal but potentially harmful content.

Application service providers, content application service providers and network service providers must proactively screen for “harmful content”. The broad definition risks the removal of lawful expression from the internet and potential government manipulation of content moderation to censor opposing or critical views.

While monitoring can identify problematic content, it often results in removals that infringe on user privacy and freedom of expression under Article 10(1)(a) of the Federal Constitution.

The broad definitions of harmful content do not align with the principle of legality required by Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR), which demands clarity, legitimacy and necessity in law.

3. The failure to address the underlying issues within a systems-based approach

The bill lacks a systems-based approach and focuses too much on illegal or “harmful” content, which is too vague. Instead, it should emphasise transparency, accountability and human rights.

While initial consultations hinted at a systems approach, the bill mainly targets content moderation, ignoring root issues like platform design and user education.

This outsized focus on content can lead to increased surveillance and privacy violations.

A better approach would prioritise the governance of online service providers, requiring them to protect human rights and empower users while ensuring transparent algorithms and safety features.

4. Concern over the way the bill was passed

We are also very concerned about how the bill was passed in Parliament on 11 December.

Pasir Mas MP Ahmad Fadhli Shaari had moved for the bill to be referred to a select committee under standing order 54(2), which states that such motions shall not require notice.

This provision is reinforced by standing order 26(1)(j), which clearly states that motions to refer a bill to a select committee under standing order 54 are an exception to the general notice requirement for motions.

However, despite these express provisions, the Speaker chose to invoke his discretionary powers under standing orders 99 and 100 to make a ruling requiring that one day’s written notice be given.

This ruling, in our view, is not only questionable in terms of direct contradiction with standing orders 54 and (2) and 26(1)(j), but also highly impracticable given that the bill was only made available the previous day and required significant time to review.

Recommendations

Legislation regulating online content should prioritise human rights and adhere to the freedom of expression standards outlined in Article 19 of the International Covenant on Civil and Political Rights.

While Malaysia is not a party to this covenant, the principles are grounded in Article 19 of the Universal Declaration of Human Rights, as noted by a UN special rapporteur in 2018.

It is crucial to evaluate the bill’s alignment with these human rights standards and international best practices to avoid potential overreach and misuse of regulatory power and to promote freedom of expression while effectively addressing online content regulation.

Once more, we urge the Malaysian government to reverse course and uphold freedom of expression.

More specifically, we call on the government to:

• (as the bill will now be presented to the Senate) refer the bill to a select committee of the Senate for further review, consultation and improvements to the bill
• establish an independent online safety commission free from government interference as an effective regulatory body [that would enhance] accountability
• ensure that the bill is brought in line with freedom of expression standards, respecting the principles of legality, legitimacy, necessity and proportionality

We, the undersigned, stand united to defend freedom of expression, information, internet freedom, privacy and human rights.

Endorsed by:

Online Safety Advocacy Group (OSAG)

1. Article 19
2. Centre for Independent Journalism (CIJ)
3. Justice for Sisters
4. Kemban Kolektif
5. Amnesty International Malaysia
6. Kryss Network
7. Childline Foundation
8. End CSEC Network Malaysia (Ecpat Malaysia)
9. Child Rights Innovation and Betterment (Crib) Foundation
10. Women’s Centre for Change
11. Association of Women Lawyers (AWL)
12. Johor Women’s League (Jewel)
13. Sisters in Islam (SIS)
14. Sinar Project
15. Maha Balakrishnan
16. The Talisman Project
17. Freedom Film Network
18. Suara Rakyat Malaysia (Suaram)

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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