blogger's rights and responsibilities - chap 3 / part 2

.........3.2 Rights of Blogger under Malaysian Law

The rights of people under Malaysian law are not based on ethnicity, races or skin colour. They are based on citizenship. Every citizen has same right to one another. Everyone have right to assembly, to speech and others[1]. It also available to legal persons like companies, corporations and statutory bodies if established under Malaysian law[2]. Some rights of human as guided by Malaysian Laws which applicable to blogger are right to speech, right to spread propagation of belief and right of copyright.

3.2.1 Right to Speech

Malaysia is one of Muslim countries in this contemporary world[3] which practice democracy. Democracy requires people to have a lively and informed interest in the process of Government. None of this is possible if there is no right to speech, assembly and association. These rights are, therefore, the essential pillars of a democratic set-up; the life-blood of a free society[4].

In Malaysia there has been less violation of freedom of speech. Perhaps, it is because, one of the means of expression is the newspaper and electronic media and these are under the control of the government[5]. Specifically, there is no mention of freedom of the press or freedom of the electronic media[6] includes web and blog.

In constitutional law, however, it is generally understood that the right to freedom of speech and expression is a combination of many rights in many forms. Communication by word of mouth, signs, symbols and gestures and through works of art, music, sculpture, photographs, films, videos, books, magazines and newspapers are all part of free speech[7].

The Act stated: Fundamental Liberties. Part II of Federal Constitution, Section 10 “Freedom of speech, assembly and association: (1) Subject to Clauses (2), (3) and (4) – (a) Every citizen has the right to freedom of speech and expression”. [8].

In this section 10 (1) (a) stated, every Malaysian citizen are free to speech and express their ideas or views. The act can be applied to bloggers, which said they also have the right to speech and express their own views on their blogs. The Federal Constitution gives to Malaysian the freedom to associate and assemble and speech in one hand. On the other, the same constitution as well as other pieces of laws empowers the authorities to restrict these freedoms[9].

Consequently, no one may deny the right of bloggers in using the blog as a medium to express their views because they have the right to do so. Even though the free speech is limited, but it does not mean blogger cannot write their personal views, interests or others.

..........3.2.2 Right to Spread Propagation of Belief

In the past, the activity of spreading da’wah quite limited. But after years, technologies help the activity become better. Da’wah or religious lecture widely spread through medias; radio, television and nowadays through the Internet[10]. Bloggers may express and promoting their religion on their blog, but cannot condemn other religions.

The Act stated: Fundamental Liberties. Part II of Federal Constitution, Section 11 “Freedom of Religion: (1) Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it”.[11].

Freedom of religion as a fundamental right is guaranteed under Part II of the Federal Constitution by virtue of section 11 (1). This article shows a special tenderness for religious liberty. For example, proper understanding of the article would portray or show that every person has the right to three things: to profess; to practice and subject to section 11 (4) to propagate his religion.

This fundamental right is available to citizens and as well as non-citizens. It is also not only available to individuals but also to groups and associations[12]. Even though Malaysian proclaims that Islam is the religion of the Federation, but it does not deny other to practice another religion[13]. Propagating own religious understanding is allowed. However, to propagate religion among Muslim is prohibited[14].

The Act stated: Fundamental Liberties. Part II of Federal Constitution, Section 11(4) “State law in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam”.[15].

The propagators of a belief or religion may use blog as a medium of propagating religion. They may go from one to another blogs and leave a comment which promoting the belief. As mentioned before, the propagation to other belief is disallowed to people professing Islam as their religion, whether the propagators are Muslims or non-Muslims[16].

.........3.2.3 Right of Copyright

The Act stated: Preliminary. Part I of Copyright Act 1987, Section 3 “Interpretation: Literary work includes (a) novels, stories, books, pamphlets, manuscripts, poetical works and the other type of writings”[17].

Copyright is one type of property, called as an intellectual property[18]. Bloggers are similar to traditional writers. The different is, bloggers write and publish their writing on the blogs. Any person who create or write a literary work called as an author[19]. The literary work includes novels, stories, books, poetical work and other writings.

Next, the Act provide: Preliminary. Part I of Copyright Act 1987, Section 4 “Publication: (1) Subject to this section, for the purpose of this Act - (a) a literary, musical or artistic work, or an edition of such work, shall be deemed to have been published only if a copy or copies of the work have been made available with the consent of the author or of any person lawfully claiming under the author in a manner sufficient to satisfy the reasonable requirements of the public, whether by sale or otherwise”[20].

Any literary, musical or artistic work or an edition of such a work should be recognized as published if the publication of the work is with the consent and permission by the author. Then, in order to claim the right on those works, the author of the work must prove that the work has been published. Whether the work published in high or less quality, it does not be a matter.

The Act stated: Preliminary. Part I of Copyright Act 1987, Section 7 “Works eligible for copyright: (2) Works shall be protected irrespective of their quality and the purpose for which they were created”[21].

Maintaining the copyright become challenge at the present time of technology, new platforms for creation, exploitation and distribution of new works as well the existing copyright works[22]. In case a blogger’s writing copied by others, he or she has right to claim the works belong to them. Bloggers may take a legal action to those who copied their works without their consent or even not give them a credit[23]; because the works on the net also consider as the literary work, and it is protected according to the Act.

Author:
Nur Fatimah Zaharah binti Ahmad. 2010. Rights and Responsibilities of Blogger under Syariah and Malaysian Law. (Thesis). USIM. Page 27-32.

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[1] Badariah Sahamid. 2005. Jurisprudens dan Teori Undang-Undang dalam Konteks Malaysia. Selangor, Malaysia: Sweet & Maxwell Asia. P 50-51.

[2] Shad Saleem Faruqi. [1992] 4 CLJ 1xiv. 8^th October 2010. “Free Speech and the Constitution”. Law Database of Malaysia. http://www.cljlaw.com.

[3] Mahbubul Islam. 2002. “Freedom of Religious Association, Assembly and Speech”. Freedom of Religion in Shari’ah: A Comparative Analysis. Kuala Lumpur: A. S. Noordeen. P 381.

[4] Shad Saleem Faruqi. [1992] 4 CLJ 1xiv. 8^th October 2010. “Free Speech and the Constitution”.

[5] Mahbubul Islam. 2002. “Freedom of Religious Association, Assembly and Speech”. Freedom of Religion in Shari’ah: A Comparative Analysis. P 376.

[6] Shad Saleem Faruqi. [1992] 4 CLJ 1xiv. “Free Speech and the Constitution”.

[7] ibid.

[8] Federal Constitution (As at 20^th June 2009). 2009. International Law Book Services: Malaysia. P 18.

[9] Mahbubul Islam. 2002. P 381.

[10] Abu Bakar Majeed. 2^nd October 2010. “Berdakwah Melalui Internet”. Institut Kefahaman Islam Malaysia. http://www.ikim.gov.my.

[11] Federal Constitution (As at 20^th June 2009). 2009. P 19.

[12] Ahmad Masum. [2009] 2 CLJ i. 8^th October 2010. “Freedom of Religion under the Malaysian Federal Constitution”. Law Database of Malaysia. http://www.cljlaw.com.

[13] Federal Constitution (As at 20^th June 2009). P 13.

[14] Ahmad Masum. [2009] 2 CLJ i. 8^th October 2010. “Freedom of Religion under the Malaysian Federal Constitution”.

[15] Federal Constitution. P 19.

[16] Ahmad Masum. [2009] 2 CLJ i.

[17] Copyright Act 1987. 2001. Law Database of Malaysia. http://www.cljlaw.com.

[18] Ellen M. Kozak. 1995. Panduan Hak Cipta dan Undang-Undang Penerbitan untuk Penulis. (trans.). Ismail Ahmad. Malaysia: Dewan Bahasa dan Pustaka. P 27.

[19] Copyright Act 1987. 2001.

[20] ibid.

[21] ibid.

[22] Khaw Lake Tee. 2004. 16^th October 2010. “Copyright Law in Malaysia: Does the Balance Hold?”. Journal of Malaysian and Comparative Law. http://www.commonlii.org/my

[23] Credit: The researcher define it as giving to the author knowledge that his or her writing has been copied, or put his or link below the writing on other blog as a reference; they are the actual owner of the works.