Wednesday, September 16, 2009

ISP's Criminal Liablity

Besides facing civil liability such as copyright infringement and defamation, an ISP is also liable for criminal liability. There are two kinds of liability listed under the criminal law which are;

-Possession of Obscene Materials

-Contempt of the Court


In each state, the law which governs the provision concerning possession of obscene materials are different. For the purpose of discussing this issue, we will look through the law used in certain states.


the Printing and Publication Act 1984 (Act 301)

Undesirable publications

Section 7 (1) If the Minister is satisfied that any publication contains any article, caricature, photograph, report, notes, writing, sound, music, statement or any other thing which is in any manner prejudicial to or likely to be prejudicial to public order, morality, security, or which is likely to alarm public opinion, or which is or is likely to be contrary to any law or is otherwise prejudicial to or is likely to be prejudicial to public interest or national interest, he may in his absolute discretion by order published in the Gazette prohibit, either absolutely or subject to such conditions as may be prescribed, the printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of that publication and future publications of the publisher concerned.

the Multimedia and Communication Act 1998

Prohibition on provision of offensive content

Section 211

(1) No content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.

(2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day or part of a day during which the offence is continued after conviction.

The transmission by ISPs:

There are 3 ways to impose this liability on ISPs;

-Impose liability on the ISP which has the knowledge on the dissemination of the obscene materials. This will allow the defense of no knowledge.

-Impose on the ISPs which disseminate the obscene materials for profitable purpose.

-Impose on the ISPs which disseminate obscene materials with knowledge but with exemption to the ISPs which operates by giving access to other servers without actively involved in the distributing of the obscene materials.

United Kingdom

the Obscene Publication Act 1951

An Act to amend the law relating to the publication of obscene matter; to provide for the protection of literature; and to strengthen the law concerning pornography.

1.Test of obscenity

(1) For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

Source: ics.leeds


Another criminal liability that can be imposed on ISPs is concerning the materials which related to the contempt of the court. It may amount to Contempt of Court if the publication of materials is:-

Prejudicial to a fair criminal trial

Prejudicial to a fair civil proceeding

Interfering with the course of justice as a continuing process

Contempt in the face of court

Acts which interferes with the course of justice


Malaysia: Criminal Procedure Code (CPC)

United Kingdom: Contempt of the Court 1981

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