By R. Loheswar | Malay Mail
As Putrajaya said it would consider Datuk Seri Najib Razak’s request for it to compel Netflix to remove the Man on the Run documentary, will the global streaming platform actually comply?
Several lawyers and activists polled by Malay Mail said Netflix would not be forced to concede to the request from the convicted former prime minister, despite Putrajaya holding the onus to request the removal of content that is seen to contravene local laws.
“This is, however, still subjected to Netflix’s own content policies and content removal processes,” Wathslah Naidu, the executive director of the Centre for Independent Journalism (CIJ), told Malay Mail.
“Netflix can (and should) still refuse to remove such content as it will be seen as censorship and government interference.”
Lawyer Louis Liaw Vern Xien suggested that one of the possibilities is that Netflix may potentially violate Section 211 of the Communications and Multimedia Act (CMA) 1998 if the documentary is found to contain “indecent, obscene, false, menacing, or offensive” content.
“Despite that, it is questionable whether the documentary can be said to contain anything ‘indecent, obscene, false, menacing, or offensive’. Even then, having the power to punish wrongful content is not the same as having the power to ban or censor content.
“In reality, if the government somehow agrees that the content is inappropriate, the government can formally request Netflix to take it down, and considering Netflix will still want to do business with Malaysia, will likely agree to such a request, even though it can’t be forced to do so,” Liaw told Malay Mail.
Lawyer New Sin Yew concurred with Liaw in that it would be hard to force Netflix to heed any such request. He also believed that Netflix, being a foreign-based entity with servers abroad, raises jurisdictional challenges.
“I doubt Netflix would listen plus they’re a US-based entity and their servers are all not in Malaysia, so there is an issue of jurisdiction. I just can’t see how the government can compel them to do so.
“They could block Netflix, but it would piss off many people,” New surmised.
Yesterday, rights group Lawyers for Liberty said Putrajaya has no power to ask Netflix to remove the documentary and should not even consider or approve Najib’s request as it would be illegal.
LFL argued that Netflix is not subjected to the CMA as the internet streaming service is an over-the-top platform, and removal would amount to censorship that goes against CMA’s section 3(3) ― which does not allow censorship of the internet.
Section 3(3) states that nothing in the CMA “shall be construed as permitting the censorship of the internet”. Among other things, the CMA is a law used to regulate communications and multimedia industries in Malaysia, and establishes the Malaysian Communications and Multimedia Commission’s (MCMC) powers, besides listing down offences and the related punishments upon convictions.
“The government must respect the rights of users or Netflix subscribers to make their own informed decision on the kind of content or movie they wish to consume,” said Watshlah.
The lawyers polled by Malay Mail echoed LFL’s remark, with Liaw citing the precedent set in Putrajaya’s ban last year of the movie Mentega Terbang shown by local streaming service Viu — where the MCMC had acknowledged its lack of power to ban content on streaming platforms.
Released in 2021, the movie directed by Khairi Anwar explores the similarities and expressions of the major religions in Malaysia. The story revolves around the journey of 15-year-old Aishah, who becomes curious about faith and the afterlife because of her mother’s declining health.
The ban came after Malay-Muslim groups raised a stink over it, and the production team was investigated by the police and called up the Malaysian Islamic Development Department (Jakim).
Lawyer Foong Cheng Leong however said that while the government has no power to compel Netflix to pull the show, the CMA can still apply to this case.
“Under the CMA, the government has the power to direct internet service providers to block access to certain platforms. However, the government has no power to direct a foreign service provider like Netflix not to air a specific show. The government may nevertheless request the removal of a certain show.
“The government may end up blocking the entire site like what happened to the Steam platform over the Indie fighting game Fight of Gods. However, Najib’s case is different. He is seeking a court order directing Netflix to remove the show. If the court grants the order and Netflix does not comply, Najib may go for contempt of court,” said Foong when contacted.
Najib’s lawyer Tan Sri Muhammad Shafee Abdullah had on Monday complained about the contents of the 1MDB documentary to the High Court during the 1MDB trial proceedings, and said his client had instructed him to take legal action against former attorney-general Tan Sri Tommy Thomas and Sarawak Report editor Clare Rewcastle-Brown over their comments in the 1MDB documentary.
The 1MDB documentary was made available on Netflix in Malaysia on January 5 after a cinematic run in October 2023. In a letter dated January 11, Najib through his lawyers officially requested for the Malaysian government to ask Netflix to remove the movie from its platform.
They also suggested that online regulator MCMC could take legal action against the documentary’s makers, citing a section that punishes the provision of offensive content online with a maximum RM50,000 fine or a maximum of one-year jail.
Claiming that the contents of the 1MDB documentary were biased against Najib amid his ongoing 1MDB trial, his lawyers pushed for the documentary to be “taken down and for that content applications service provider to be prohibited from continuing to air this documentary programme”.
In response, Prime Minister Datuk Seri Anwar Ibrahim said Putrajaya will weigh Najib’s request and Communications Ministry Fahmi Fadzil said the MCMC has yet to look into the legal aspect of it.
