By OON YEOH, Columnist, The Star
Caution is almost always the practice when editors are faced with a story that may have legal repercussions. Embedding a click-through to an Internet search results page may just skirt the law.
FINALLY Deputy Prime Minister Datuk Seri Najib Tun Abdul Razak has come out to deny that his wife Datin Seri Rosmah Mansor was involved in the killing of Mongolian translator Altantuya Shaariibuu.
Over the past week news editors – whether in the mainstream or new media – had been grappling with how they were to report on the June 18 statutory declaration by Malaysia Today owner Raja Petra Kamaruddin, given the possible legal repercussions.
In his declaration, Raja Petra says he was reliably informed that three people – including Rosmah – were present at the scene of the murder of Altantuya Shaariibu in October 2006.
It’s only to be expected that in reporting on it the traditional media would avoid naming the individuals mentioned in the declaration, for it could be defamatory and potentially sub judice even.
What’s interesting is that even New Media practitioners adopted a mixed response to this development.
Political analyst Khoo Kay Peng, writing about it in his June 20 blog entry RPK’s Bombshell, names Rosmah as well as provides a link to a copy of the statutory declaration.
When The Star editor-in-chief Datuk Wong Chun Wai wrote about it in his June 22 blog entry RPK, IGP and AG, he provided a link to a story published in The Star’s website that did not name names.
In Jeff Ooi’s original June 23 posting, Hot Potatoes, he too refrained from naming names and also provided a link to The Star’s no-names-named story from the previous day.
“This blog would refrain from the details, as the IGP (Inspector-General of Police) had warned that the matter could be sub judice as the Altantuya murder trial was ongoing,??? Jeff wrote.
However, in an update to the posting, just a few hours later, he does mention names.
Rocky’s Bru of June 23 – Emergency motion to discuss a Statutory Declaration? – quoted an extract from a news story published in The Star about DAP leader Lim Kit Siang calling on Parliament to discuss the allegations.
Rocky himself did not name any names, but he described the prominent individuals mentioned in the declaration.
He also provided a link to the declaration as well as a link to another blogger’s posting that does name some names.
So, as you can see, among the prominent socio-political bloggers the stance is somewhat divided. What about the online news sites?
Malaysiakini boldly ran a story on June 20 with a headline that names Rosmah. It also hosted a copy of the statutory declaration.
Malaysian Insider, in contrast, held off from running a story until June 24. But when it did so, it ran three articles, including a commentary.
All three named names. None of the stories has a link to a copy of the declaration, though.
I can certainly understand why there would be some hesitation, even among New Media types, to name the names mentioned in the declaration.
Alleging that someone was at the scene of a heinous crime is certainly defamatory.
But what about a link to a copy of the declaration? Can merely providing a link be a crime?
I asked a few mainstream media editors this question and they said they were not sure. “It’d certainly be a test case,??? one said.
It would be because no one in Malaysia, to date, has been sued, prosecuted or even investigated because of a link they provided on their blog or website.
It’s instructive to look at how the United States is dealing with the issue of links because Cyberlaws are far more advanced there, and the rest of the world tends to take its Cyberlaw cues from there.
The nearest example is probably the case involving DeCSS, a program that allows you to decrypt content on DVDs encrypted with the Content-Scrambling System.
DeCSS was devised by a trio of hackers – two of whom are still unknown – and released online in late 1999.
One of the trio, Jon Lech Johansen, a Norwegian programmer, was tried and acquitted in Norway for releasing the code.
However, in the United States, a federal appeals court in late 2001 upheld an order that prohibits not only the publishing the DeCSS code but also the mere linking to it.
The decision basically upholds a controversial 1998 American law known as the Digital Millennium Copyright Act, which prohibits the circumvention of copy protection and the distribution of devices that can be used to bypass copyrights.
The court accepted that computer code is a form of speech and therefore is entitled to some First Amendment freedom of speech protection under the US Constitution.
But the court also concluded that the material in this case was “content-neutral??? and therefore entitled to considerably less protection than “expressive??? content such as poetry or a novel.
Apparently, the original court decision in 2000 had found that linking to the DeCSS code was illegal because of “bad intent???.
In response, Cindy Cohn, the legal director of the Electronic Frontier Foundation, an international non-profit organisation focused on free speech rights in the digital age, rightly said that “bad intent??? was highly subjective.
After all, how do you prove that someone posted a link for malicious reasons? It could be for journalistic reasons.
This could certainly be an argument for the RPK case. After all, what he has done is certainly big news.
One editor told me that it’s actually not necessary to post a link to RPK’s statutory declaration because if a reader wants to know more about the issue, he or she can easily use Google to find copies of that declaration.
He’s right. But let’s say a blogger wants to make life easier for his readers but doesn’t want to take the risk of linking directly to the declaration. What can he do?
Here’s an idea. He can post a link to Google search results based on the keywords “Raja Petra Kamaruddin Statutory Declaration???.
The very first result listed is a link to a copy of that declaration. Surely a link to a Google results page can’t be defamatory.
> Oon Yeoh believes linking is the essence of what the Internet is all about. You can link to him at www.oonyeoh.com.