Some months ago, our Deputy Communications and Multimedia Minister Datuk Jailani Johari was quoted as saying that admins of group chat/messaging applications (such as WhatsApp, WeChat, Telegram, Viber etc) can be held responsible for offences (such as spreading of fake news, libel, fraud, exposure of classified information) committed by users in the group chat under the Communications and Multimedia Act 1998 (“CMA”).
The Malaysian Communications and Multimedia Commission has even published an advisory note for group chat admins which sets out the Dos’ and Don’ts as a group chat admin. Some of the rules are such as requiring admins to comment on posts to ensure discussions stay on track; check posts regularly; consider removing or blocking those who persist in making inappropriate posts, etc.
When the news first broke out, it sparked a lot of discussions on the social media and the news was even covered by foreign media, with many questioned the motive behind such move and the effectiveness of such enforcement if it ever happens. In fact, a disclaimer notice by WhatsApp group admins was making its round in many group chats that reads as follows:
“I and other group admins do not allow or support any form of WhatsApp messages that display information that is pornographic, incorrect, libellous, seditious, false or inappropriate and as determined in accordance with/ by the Communication and Multimedia Act 1998. All WhatsApp messages displayed by individuals or myself in this group are not my responsibility, it is the responsibility of every individual in this group.”
Putting aside whether the above disclaimer notice has any legal effect or not, one question that came to everyone’s mind was, can a WhatsApp group admin go to jail because of a message sent by a member in the group?
The Deputy Minister did not specify clearly which provision under the CMA will such action be taken, but I believe he was referring to Section 233(1) of the CMA.
Section 233(1) of the CMA reads as follows:
(1) A person who –
(a) by means of any network facilities or network service or applications service knowingly initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or
(b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address, commits an offence.
Whoever that commits the above offence can be fined up to RM50,000 and/or jailed up to 1 year.
There are two important elements that must be fulfilled in order for the prosecution to use Section 233 against an offender, namely “knowingly initiates” and “with intent to commit an offence”.
What that means is that the offensive message must have been knowingly initiated by the sender who had the intention to send out such a message. A group chat admin plays the role as an organiser of the group chat, not as a moderator. All messages sent in a group chat are transmitted instantaneously. It is not like the message will have to be first approved by the group chat admin before it goes online.
Hence, if a user within the group sends out an offensive message, the group chat admin has no power to delete or cancel that message before it reaches everyone in the group. When that happens, how can the admin be responsible for a message not initiated by him and without his intention?
A High Court judge in New Delhi in the case of Ashish Bhalla vs Suresh Chawdhury & Ors made the following remarks:
“I am unable to understand as to how the Administrator of a Group can be held liable for defamation even if any, by the statements made by a member of the Group. To make an Administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation. When an online platform is created, the creator thereof cannot expect any of the members thereof to indulge in defamation and defamatory statements made by any member of the group cannot make the Administrator liable therefor. It is not as if without the Administrator’s approval of each of the statements, the statements cannot be posted by any of the members of the Group on the said platform.”
Based on the above analysis, it is my humble opinion that the proposal to take legal action against group chat admins is not a viable option. The authorities should instead go after the sender of the message, as displayed in the cases below:
- Muslim Ahmad was convicted under Section 233 CMA for making offensive comments “damn your sultan”, “your sultan kantoi”, “what’s the kantoi with your sultan” against the then Sultan of Perak on the Internet.
- Rutinin Suhaimin was convicted under Section 233 CMA for posting a derogatory statement “Sultan Perak sudah gilaaaaaaa!!!!!!!” on the Sultan Perak’s website.
- Ahmad Abd Jalil was convicted under Section 233 CMA for saying “Sultan Johor kulitnya putih seperti kulit babi” on his Facebook’s account.
- A man in Johor Bahru who goes by the name of Pa Ya was arrested for uploading a crude photo insulting the Prime Minister in a WhatsApp group.
- A man in Penang was arrested for writing a malicious statement about the Sultan of Johor through WhatsApp.
Many of these messaging apps encrypt the messages, so it is unlikely that the law enforcement authorities are able to read your messages on these messaging apps.
The authorities would usually take actions only upon receiving complaints against the contents where the complainants show screenshots of the contents to the authorities. The authorities may also request these messaging apps to provide assistance provided certain conditions are met.