Can the FINAS act be enforced on content created for social media and online? Here’s what lawyers say

Could Minister Datuk Saifuddin Abdullah have gone beyond the intention of Parliament and the spirit of the law by invoking a 39-year-old legislation to assert Malaysia’s sovereignty over a controversial documentary by a Qatari news agency?

Several lawyers familiar with the National Film Development Corporation Malaysia (Finas) Act 1981 said Saifuddin’s caution to today’s film producers to get a licence from Malaysia’s industry regulator was a dubious interpretation of the law that was drafted ahead of the digital age and sent mixed signals to society at large.

“For me, this situation is very much a case where although social media postings may fit the letter of the law, it does not fit the spirit of the law; by law, I mean the Act,” Fahri Azzat who specialises in civil litigation told Malay Mail when contacted yesterday for comment on Saifuddin’s remarks.

The communications and multimedia minister sent large ripples across the Malaysian social media landscape when he called attention to legal provisions in the Finas Act that require all film producers to provide the corporation with a seven-day advanced notice prior to filming, and to also have a company with a paid-up capital of RM50,000.

The licensing remark was made in the wake of a controversial documentary by Al Jazeera titled Locked Up in Malaysia’s Lockdown aired on July 3 which drew condemnation from Malaysian government officials who claimed it was a biased and misleading portrayal of the treatment of migrant workers in the country during the movement control order (MCO).

Fahri said the minister should remember that enforcement of the Finas Act according to his interpretation should be applied equally across the board “to him and all his fellow politician friends”.

“This brings me to the question: Has the minister ever previously applied from Finas for a licence to upload his video social media postings? If he hasn’t, he should make an example of himself,” he added.

Fellow lawyer Datuk S. Murugesan said that the Finas Act was passed in Parliament before the advent of the internet and pointed out that should the issue be disputed in court, the judiciary will have to apply what is known as “purposive interpretation” to the legislation.

This means the court will interpret the Act according to the context and purpose of when it was enacted.

Murugesan explained that the current context would mean that every smartphone owner would be required to apply for a Finas licence as everyone can shoot a video on their gadget and share it.

He pointed out that other legislations such as the Film Censorship Act 2002 and the Communications and Multimedia Act 1998 have specifically excluded the internet.

“Perhaps the Finas Act should be amended to include this. In any event, the minister’s stand will only produce ridiculous results if the government chooses to enforce it,” he said.

“But even as the law stands now, I doubt the minister can win if he chooses to enforce it. I don’t think judges will interpret it as applying to all,” Murugesan told Malay Mail, adding that the Finas Act clearly said “film industry”.

Lawyer Datuk Geethan Ram Vincent shared the same opinion, saying the Finas Act in its current form should only be used for the film industry and not the common man today who uses social media.

“The Act cannot be stretched beyond the purpose of the Act itself. The primary focus of the Act is the film industry, and the film industry includes the activities of film production, distribution and exhibition carried out in Malaysia.

“To extend the application of the Act to ordinary and everyday people, that is to say the public has to have a licence from Finas before they can upload to their own social media account is certainly, in my opinion, from the context of the Act, beyond the intention of legislature,” Geethan told Malay Mail.

Lawyer Lim Wei Jiet said that if the authorities adopted Saifuddin’s interpretation of the Finas Act and enforced the law, the repercussions would be immense.

“If this interpretation is adopted, it would make it an offence to produce videos on social media without a licence which comes with imprisonment of up to two years or a RM50,000 fine, or both.

“Such perverse interpretation will be a most repressive clampdown on free expression unseen in any other part of the world to my knowledge and an embarrassment to Malaysia,” he said.

Saifuddin issued a statement last night to clarify his earlier remarks about the licensing issue following widespread confusion and acknowledged that the Finas Act needs to be ‘fine-tuned”.

He also stressed that the Perikatan Nasional government has no intention of stifling freedom of expression as claimed. —  Malay Mail

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