| Yawning
Bread. 31 December 2007
Blogging is a criminal hobby, part 1
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One can easily argue that pornographic videos are against the law, as well as those with politically partisan messages. That the latter would get you into trouble most Singaporeans now know, having witnessed the travails of Martyn See, whose videos about opposition leader Chee Soon Juan, and former political detainee Said Zahari have been banned by the Singapore government. At one point, he was investigated by the police with a view to charging him under Section 33 of the Films Act. But non-political, non-pornographic videos? Well, the Films Act also says that
The certificate referred to is a document from the Board of Film Censors. In other words, if the video embedded in your blog has not been submitted to the film censors and passed by them, you may be committing an offence, since you are "exhibiting" it on your site. But it's only 5 minutes, you say. Yet, 5-minute short films screened at the annual film festival too require a censorship certificate, so length is not a consideration.
* * * * * Some laws were written in haste, in anticipation of what an opposition politician might do, but then it turns out that it would be an ordinary citizen doing it. Should the law then be used against the ordinary citizen? The various laws conflict with each other as you'll see in an example or two below. Some regulations are not even laws: they are rules (subsidiary legislation) promulgated by ministers and civil servants, and liable to be changed at whim. Unlike laws that operate through the justice system with a judge making the decision as to guilt or otherwise, enforcement of such rules takes the form of civil servants making the decision. Furthermore, whereas the judicial process is an open one and the judge's reasoning should be visible in the public record, civil servants can and often are totally opaque in how they arrive at their decision that so-and-so has flouted their regulations. It is a very unsatisfactory state of affairs. Let me illustrate the mess with more examples: A look at the Broadcasting (Class Licence) Notification 15 July 1996, the Internet Code of Practice, 15 July 1996 and the Internet Industry Guidelines as found on the Media Development Authority's (MDA) website suggests that the government sees content providers as falling into 3 categories: 1. Registered or registrable Internet
Content Providers You can discern the existence of the nameless group by seeing how they have defined Internet Content Providers in the Clause 2 (Definitions) of the Notification:
So if your individual blog or website is not for business, political or religious purposes, you're not an Internet Content Provider; you must therefore belong in the third, nameless, category. But if you had ranted about the ministers' pay increase or criticised the public transport regulator approving higher bus and train fares, wouldn't that be political? In addition, if you have advertisements on your blog, perhaps supplied by an ad engine, and you earn a wee bit of money from that, then maybe your blog is "for business", in which case, you are an Internet Content Provider after all. In effect, you can never be sure whether you're in the nameless category or you are an Internet Content Provider. What about the first category -- to be a registered or registrable Internet Content Provider? Clause 5 (b) of the Schedule of the Notification says that:
Frankly, I don't see how the definition is distinguishable from that of the second category -- that of a plain vanilla Internet Content Provider. So there's no way of knowing whether you fall into the first category or not. The only way you'd know -- but be unable to challenge if you disagreed -- is when the MDA asked you to register. Registration entails "provid[ing] the Authority with such particulars and undertakings as the Authority may require in connection with the provision of the Internet Content Provider's service." [1] What a sweeping statement! If the MDA asked you for an undertaking in the form of a million dollars in bank guarantee to ensure that you'd be able to pay whatever fines they imposed on you in future, they'd be entirely within their right to do so. Summing up, it is totally obscure what category you are in and the authorities are empowered to demand anything of you. But there's more. In the MDA's website there's a document called the Internet Industry Guidelines. It is not a piece of subsidiary legislation, but more of an explanatory note. However, it says that all bloggers are Internet Content Providers through the broad definition in paragraph 8 which makes no mention that the site must be political:
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The Guidelines state that Content Providers are regulated under the Class Licence Scheme which requires compliance with the Internet Code of Practice (see box at right).
Then it appears to contradict itself by saying,
And then contradicts itself again. As an individual, you may not be Class Licensed, but the rules of the Class Licence still apply to you.
So, at the end of the day, the authorities can classify your blog in any way that suits them, and apply to you whatever legal standards they wish.
When you turn your attention to the Internet Code of Practice, you may be forgiven for feeling displaced. While all the forgoing had laid the stress on categorising websites with political or religious discussions, saying that such websites must be registered and even if not, are automatically licenced and therefore must abide by the Code of Practice, the code itself is concerned much more with sex than anything else. It has no guidelines about politics other than a vague statement about public interest, public security and national harmony, only one specific mention of "whether the material glorifies, incites or endorses ethnic, racial or religious hatred, strife or intolerance" [2], but six listings in Clause 4(2) about sex and violence in all its various forms. So here we are, classifying websites for their political sensitivity and enjoining them not to talk about sex. While on the subject of sex, the Undesirable Publications Act defines a "publication" to mean, inter alia,
and that such publication would be obscene if its effect would "tend to deprave and corrupt".
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If one "makes or reproduces, or makes or reproduces for the purposes of sale, supply, exhibition or distribution to any other person" such material, it will be an offence. As we all know, it is the easiest thing to do to find and download all sorts of porn from the internet. We even share them with friends. Some of us upload revealing pictures of ourselves onto our blogs or networking sites. Nobody seriously gives a thought to this law or to Section 292 of the Penal Code:
From time to time, we see press reports of the police rounding up vendors selling pornographic DVDs at night markets while airport customs remain very vigilant too. So these laws are not dead letters. But what is the effect of enforcement action taken on offline activity without enforcement on online activity? Why the distinction between a DVD bought at a night market by the internet dummy (usually lower income) and a DVD burned to disk by a savvy surfer (usually higher income) who has a credit card and knows how to download? Why do we penalise the local entrepreneur at the night market in favour of the foreign online entrepreneur who provides streaming and downloads? Chances are, your blog is not a Registered Internet Content Provider, and therefore no part of the Parliamentary Elections Act applies to you. But the MDA can tell you at any time that you are required to register, e.g. just before the next general election. Once they do that, the provisions of the Parliamentary Elections Act (which is available free of charge over the web) and its subsidiary Regulations (which you cannot see unless you pay a hefty annual subscription) apply to you. One condition is that you may not "enhance the standing of any such political parties, candidates or groups of candidates with the electorate in connection with any election" [3] during an election period. However in years past, you might have written blogposts that argued for greater representation of opposition parties in Parliament. You might have said such-and-such a party is credible and deserves more votes. When elections come around, these posts are still available through your archives. Then what? Would you be breaking the law? Does that mean you have to spend days combing through your own archives and re-reading everything you've written over the previous, say, 7 years, and delete some of them? Who is going to bother doing that? * * * * * Of course the riposte is that, in practice they cannot be enforced precisely because there isn't enough space in jail for all of us. However, having reams of unenforced or selectively enforced laws cannot but bring disrepute to the entire justice system. Furthermore, the uncertainty about when they will be enforced is a major deterrent to developing a media industry. An individual blogger doesn't have to care very much. He can take comfort from his insignificance relative to vast amount of material on the internet and hope to escape the beady eye of the authorities, but someone else, e.g. a movie maker, web developer or online newspaper entrepreneur, who is about to invest time and money in a large project will care. He needs certainty before he sinks effort and resources in, because his loss, if it all gets wiped out when some hidden rule is surfaced, will be so much greater. Hence, all these unenforced laws have a perverse effect. They do not stop the individual blogger from doing most of what he wants to do, but scare away the creative investment that the MDA is supposed to foster. What should we do about the mess? That's for part 2.
© Yawning Bread
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Footnotes
Addenda None
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It is commonplace to see a videoclip embedded in a blog, whether from
YouTube or self-made, but it may well be a criminal offence in Singapore.
Such is the sweeping nature of many of our laws.
