3 September 2008
By Bernard Leong, Benjamin Cheah, Choo Zheng Xi, Gerald Giam, Justin Zhuang, Martyn See, Ng E-Jay, Scott Teng, Roderick Chia, Alex Au, Ho Choon Hiong, Mohan Gopalan
Dr Cherian George was unable to sign this paper due to a conflict of interest. His wife sits on the AIMS committee.
AIMS' proposals are progressive but can be improved
1. The Advisory Council on the Impact of New Media on Society (AIMS) released its public consultation paper last Friday, 29 August 2008.
2. In April, a group of 13 bloggers submitted proposals for the deregulation of the Internet to the Minister for Information, Communication and the Arts. It can be found at http://www.yawningbread.org/ybsamplerfiles/bloggerssub.pdf. AIMS has put on the table some good, forward-looking options that move in the directions proposed by us. AIMS' analysis of the state of the technology and its impact on the relevance of the existing regulatory assumptions were particularly lucid.
3. However, the consultation paper is silent on two aspects which we consider fundamental, and which we had discussed at length in our April proposals:
(a) Principles. There is a lack of principled recognition of the value of the free flow of information as a critical enabling feature of a mature and robust democratic process. The paper advises against the government regulating what is "unregulable" given the borderless nature of the Internet (paragraphs 1.09 and 1.10). This is merely a concession to a practical impossibility, not an articulation of the value of free expression. Articulating so would serve well as a guide for future amendments to legislation.
(b) Process. There was no discussion on the process of regulation. There seems to have been an assumption that the various overlapping mechanisms – of bureaucratic regulation by the Media Development Authority, the Board of Film Censors, and occasionally through prosecution – would continue, with proposals for even more panels, such as one for assessing political films (paragraph 4.57 of AIMS' paper). In contrast, in our April submission, we had called for a pruning of the processes, with particular emphasis on removing administrative discretion, including the power to impose fines. We had found the reliance on administrative discretion in the existing regulatory system unsatisfactory. We argued that if truly needed, rules should be written as law and violation of such laws be a matter for prosecution in an open court. Transparency of process is important and in this regard, we hope that AIMS will address this issue when they finalise their report.
4. In the areas where AIMS has put forward proposals, we note that it has taken a somewhat cautious and conservative approach. Here are 5 areas in which we have specific feedback:
(a) Films Act Section 33. Section 33 of the Films Act should be repealed immediately and unconditionally. AIMS' consultation paper suggested repealing it in phases. This is unnecessarily conservative.
The paper outlined 3 ways forward (paragraph 2.31). The first – classification of political films – is absurd because voters are at least 21 years old anyway, and such a proposal calls for even more bureaucracy. In any case, as AIMS' paper pointed out, the technology is already such that if anyone wishes to circumvent the rules by putting it up on the Internet, there is no practical way to stop him. The second – notification and right of reply – is also meaningless in practical terms. The third – blackout during parliamentary elections – is the most realistic of the three. Yet it still has definitional problems. What is a "party political film"? How new is "new"?
The basic problem is AIMS' uncritical adoption of the idea that "misleading" films may cause havoc (paragraph 2.35) and that there is a way for gatekeepers to determine the "truth". Yet, politically slanted videos are an integral part of the democratic process and exposure to such material helps the electorate to exercise and strengthen their faculties of political discernment.
Furthermore, as the paper pointed out, "the incumbent political party may be said to have prior knowledge of when a General Election would be called, and may release party political films just before elections are called" (paragraph 4.73). Thus, a blackout period, far from assuring neutrality, in effect introduces a bias.
Given these problems, we call for an unconditional repeal of Section 33 of the Films Act, with at most the stipulation that all election advertising that promotes or opposes a candidate should include the name and address of persons sponsoring such advertisements, as in the case of Australia and Canada (paragraphs 4.38 and 4.40).
(b) Films Act Section 35. Section 35 of the Films Act should also be repealed. This section empowers the Minister to ban any film at his discretion. For example, Martyn See's video documentary Zahari's 17 years (mentioned in paragraph 4.45) was not banned under Section 33, but under Section 35, yet AIMS' consultation paper does not propose the repeal of Section 35.
(c) Parliamentary Elections Act and Regulations. We agree with the suggestion to broaden the positive list for election advertising (paragraph 4.79) with respect to Internet activities of political parties and candidates during an election. However, it is worth asking if, with the broadening, it is even necessary anymore to have a positive list. We think it better if it is removed altogether.
Malaysia had a general election in March 2008 without regulations circumscribing election advertising on the Internet, and by all accounts from the people (apart from the government that saw losses) nobody thinks the election was less democratic for it.
A number of Malaysian candidates raised money through Internet appeals. Allowing online fundraising is a point that we feel AIMS' paper should have addressed even as it recommended that political parties should be allowed to use social networks (Web 2.0) in their election advertising.
(d) Class Licence Scheme. The consultation paper "recommends the removal of the registration requirement for individuals and bodies of persons who provide any programme, for the propagation, promotion or discussion of political or religious issues relating to Singapore through the Internet websites" (paragraph 4.81) as adequate legislation is in place to deal with potential threats to our society. We support this proposal.
However, there is room to take AIMS' proposal further. The entire Class Licensing Scheme should be dismantled. The Class Licensing Scheme is distinct from the registration requirement, in that it treats all Internet sites as automatically licensed even if owners are not called on to register. As automatically licensed sites, the Media Development Authority (MDA) treats them as coming within the scope of the Internet Code of Practice, and sees itself as having the power to impose fines on any website owner for violating its Code of Practice. It is this kind of regulation through administrative discretion that we have argued against, for it is characterised by an opacity of process, and the free hand given by the MDA to itself to write and interpret the Code of Practice. As the AIMS' paper says, there is already adequate legislation in place, whether to deal with child pornography or racial and religious hate-mongering, so there is no remaining rationale for resorting to an automatic class licence scheme administered by the MDA. The continuance of such a scheme, with its inherent lack of certainty in interpretation and limited avenues for recourse promotes self-censorship, which is the antithesis of the engagement and active participation that the consultation paper calls for, where "processes are more transparent, eliciting the trust of its citizens" (paragraph 3.41).
(e) Symbolic ban on 100 sites. We agree with the proposal to abandon the symbolic ban (mostly for pornographic content) on 100 websites. The consultation paper had argued – and we agree with its analysis – that "the existence of the ban may give parents a false sense of security when the reality is that the 100 websites are merely symbolic. Furthermore, the symbolic value of these 100 websites diminishes with the continued proliferation of websites with undesirable content, and the increasing use of alternative methodologies like file-sharing networks" (paragraph 5.90).
5. Overall, we find AIMS' proposals progressive. In the areas discussed above, we urge AIMS to incorporate our feedback when they finalise their report, and we hope that the government adopts all the proposals so presented.