Striking the balance on social media

WHEN the Prime Minister came back to work after he fell sick with e-coli earlier last week, his Twitter followers knew of his recovery before it was reported in the media as he had tweeted it. In fact, it was his tweet that later became a news report, instead of any statement from his office.

Earlier this year, when the whole nation focused its attention to a high-profile criminal appeal in the Federal Court, Twitter users knew real time what was submitted in Court from the tweets of the people who observed the proceedings. They did not have to wait for news report to find out what happened in the proceedings.

These are some of the examples of how social media has changed the way we obtain information and how we interact with each other.

Before the advent of the Internet, information was monopolised by the State. The State could dictate and control the information that filtered to the masses.

When the Internet happened, this monopoly slowly eroded. First, there were alternative websites, offering information that was different from what you could get in the mainstream. Then came the blogs, which basically allowed the people to share information on the Internet in a form of a journal. But the biggest development was the emergence of social media; with it, everyone can share content.

This “perakyatan maklumat”, or democratisation of information broke the monopoly of information held by the State. With social media and the Internet revolution, the State is but one of the very many merchants in the marketplace of information.

And this has greatly impacted the socio-political landscape. Now, politics and governance must not only be done but be seen to be done on social media.

The democratisation of information created an empowering effect on the people. It was as if people suddenly realised that they had a voice, they had rights and they could exercise it.

And exercise those rights they did.  Freedom of speech and expression flourished on the Internet and even more so on social media.

The law has to keep up these socio-political developments, which manifested through the Internet and social media, now part and parcel of public life in Malaysia.

There is the ugly side of social media. It can become a place where unverified information is shared, where defamatory comments are made, where insults are thrown and where harassment takes place.

Social media can cause a lot of harm. People have been harming each other ever since Cain struck Abel down and killed him, but with social media, the possibilities are endless.

The challenge when it comes to social media can be distilled as such - the need to balance freedom of speech and expression with limits to those freedoms. Where do we draw the line in the sand when it comes to freedom of speech and expression?

As social media is so widespread and so easy to use and affects so many people, the challenge is now greater than ever.

Finding the balance between freedom of speech and expression, and the limits to those freedoms is not easy. Social media is constantly changing and evolving and this makes finding that balance harder.

The State’s response in dealing with these challenges appear disproportionate to the mischief it may be trying to address. The response to the challenges posed by social media seems to be the closing of the democratic public spaces through State action. The State action has created a chilling effect on the freedom of speech and expression.

But freedom of speech and expression is a guaranteed right. Everything is permitted unless restricted, and restrictions as defined by case law must be for the permitted purposes and must be reasonable restrictions. And so our approach to these challenges must be tilted towards the upholding freedom of speech and expression, and for the law to only step in the extreme circumstances.

The response cannot be by closing the doors and making the sphere of public expressions smaller. It must be by way of demarcating, clearly, precisely and not arbitrarily, the lines in the sand one must not go beyond.

And those lines in the sand cannot be through merely being offensive. The law should not step in merely when people are offended. If one says something that another person finds offensive, the State has no obligation to do something about it.

The line should instead be when the exercise of freedom of speech and expression threatens or incites actual physical harm to persons or property. The threshold is set high enough in order not to render illusory or ineffective this fundamental freedom. Speech or expression which is racist, bigoted, prejudiced, abhorrent or offensive to us must still not be curbed if there is no danger of physical harm.

Yes, social media can do a lot of harm. But we must realise that our society is constantly changing and social media is an important cog in the evolution. The maturing of our democracy, of our society, relies on the free spaces in the public sphere. To curtail freedoms would result in stunting our growth as a society and as a nation.

* A version of the above article was delivered as a speech in a forum entitled ‘Evolving Legal Landscape of Social Media’ in conjunction with the Opening of the Legal Year 2015.

> The views expressed are entirely the writer's own


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