The Content Forum: THE CONTENT CODE | PART 5: Specific Online Guidelines

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Online Content Code

CONTENT

INDEX | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 |

Appendix 1 | Appendix 2

Part 5 : Specific Online Guidelines
| 1.0 | 2.0 | 3.0 | 4.0 | 5.0 | 6.0 | 7.0 | 8.0 | 9.0 | 10.0 | 11.0 | 12.0

1.0 - Scope and Coverage

1.1

In adhering to this and the relevant parts of this Code, no action by Code subjects should, in any way, contravene Section 3(3) of the Act, which states that "Nothing in this Act shall be construed as permitting the censorship of the Internet".

1.2

Code subjects in this Part are providers of online Content or those who provide access to online content through present and future technology. These include, but are not limited to:

(a)

Internet Access Service Providers;

(b)

Internet Content Hosts;

(c)

Online Content Developers;

(d)

Online Content Aggregators; and

(e)

Link Providers

1.3

"Online" is defined as a networked environment available via a connection to a network service whereby Content is accessible to or by the public whether for a fee or otherwise and which originated from Malaysia. Content, for the purposes of this Part, means Content as defined in the Act but does not include:

(a)

Ordinary private and/or personal electronic mail other than bulk or spammed electronic mail;

(b)

Content transmitted solely by facsimile, voice telephony, VOIP and which is intended for private consumption; or

(c)

Content that is not accessible to the public whether freely, by payment of a fee or by registration, including (but not limited to) Content made available by way of a closed Content application service or a limited content applications service as defined under Sections 207 and 209 of the Act respectively.

2.0 - Concept of Innocent Carrier

2.1

Code Subjects providing access to any Content but have neither control over the composition of such Content nor any knowledge of such Content is deemed an innocent carrier for the purposes of this Code. An innocent carrier is not responsible for the Content provided. Nonetheless, this does not exempt such access providers from adhering to the General measures as outlined in Part 6.0 of this Part where it expressly applies to them.

3.0 - Objectives

3.1

The Online environment vastly differs from other existing traditional mediums directed to the general public at large where the use and dissemination of Content are concerned.

3.2

Not only are Online users able to exercise their choice on whether to access, read or digest various Online material at any time, they are also, by certain applications, able to contribute to Online Content in their own personal capacity.

3.3

Overwhelming benefits have been brought about by such a medium but where there is use, there is also the potential for abuse.

3.4

Online Content providers are committed toward taking a responsible approach to the provision of Content by implementing reasonable, practicable and proportionate measures and to provide a response mechanism in cases where prohibited material or activity is identified. End users should retain responsibility for the Content they place online, whether legal, or illegal.

3.5

The Online environment is not a legal vacuum. In general, if something is illegal "off-line", it will also be illegal "on-line". In this matter, the relevant existing laws apply.

3.6

Responsible Content providers must, therefore, be guided by the commitment to reassure consumers and businesses that online Content to inform, educate, entertain and facilitate commerce is safe and secure. Hence, the purpose of this Part is to:

(a)

Recommend guidelines and procedures relating to the provision of online Content through self-regulation by the industry in a practical and commercially feasible manner and at the same time foster, promote and encourage the growth and development of the Online services industry;

(b)

Promote the education of users in making an informed selection of the Content they consume; and

(c)

Keep updated with international as well as national standards, trends and cultural sensitivities of the general Malaysian public in applying and reviewing this Part.

4.0 - Principles

4.1

The following principles shall guide the parties who review, administer, apply, are affected by and/or are subject to this Part of the Code:

(a)

There shall be no censorship of the Internet as provided in Section 3(3) of the Act.

(b)

Responsibility for Content provided Online by Code Subjects primarily rests with the creator of the Content

(c)

In acknowledging that in the fast-changing online environment, it is very often impractical, costly, difficult and ineffective to monitor Content, Code subjects will nonetheless fulfill, to the best of their ability the requirements of the Code.

(d)

Users are responsible for their choice and utilisation of Online Content.

(e)

As users are able to independently exercise the choice on whether to access, read or digest and consume various online materials, the application of the Code, by Code Subjects under this Part shall take cognisance of this fact.

(f)

Any measures relating to content which are recommended by this Part from time to time shall be:

(i)

Technologically neutral;

(ii)

Fair; and

(iii)

Widely affordable and not adversely affect the economic viability of the communications and multimedia industry.

(g)

Any guidelines that apply to the provision of online Content should not unduly restrict the growth of the industry but serve to enhance a conducive environment to encourage and stimulate the Malaysian communications and multimedia industry.

5.0 - Online Guidelines

5.1

Code Subjects shall apply the guidelines set out in Part 2 of this Code in determining whether Content is indecent, obscene, menacing or offensive save where expressly provided in this Part.

(i) Prohibition
No Code Subject shall knowingly provide Online prohibited content.

(ii) False Content
Content that is not truthful and likely to mislead is prohibited except in any of the following circumstances:

(a)

Satire and parody;

(b)

Where it is clear to an ordinary user that the content is fiction; and

(c)

Where it is preceded by a statement that the content found on the web site is not factual.

6.0 - Concept of Innocent Carrier

6.1

It is recognised that it is impractical, difficult and ineffective to monitor or control a user's access to Content available Online. It is left to the user to decide on the nature of Online Content to be consumed and the tools to be utilised by the user in controlling such Content.

6.2

The Content Forum will assist users in providing information on the type of tools that are available for users to control access to Online Content. Such information can be provided on the Content Forum's website which may be updated from time to time to reflect evolving technology. The Content Forum's website shall contain information on:

(a)

The types of tools available to assist users in filtering or controlling Online content;

(b)

User ethics in accessing and providing content over the Internet;

(c)

Responsibilities of adult users over children under their care in relation to Internet use;

(d)

Measures which can be taken by parents, guardians and teachers to control children's access to Online content;

(e)

Content provider ethics;

(f)

This Content Code;

(g)

The appropriate channel to which a complaint regarding online Content may be made, and the procedures by which such a complaint is to be made.

6.3

The information provided on the website is intended to assist Online users and the Content Forum is not responsible for any tools recommended or advice rendered.

6.4

Apart from the aforegoing general measures the following specific measures as set out in 7.1 - 10.2 must be complied with depending on the degree of control that a Code Subject may have over the Online Content.

7.0 - Internet Access Service Provider (IASP)

7.1

An IASP shall comply with and incorporate terms and conditions in the contracts and legal notices as to terms of use with subscribers of their services. This shall include the following terms:

(a)

Subscribers will comply with the requirements of Malaysian law including, but not limited to, the Code and shall not provide prohibited Content nor any Content in contravention of Malaysian law;

(b)

The IASP will have the right to withdraw access where a subscriber contravenes the above; and c) The IASP shall have the right to block access to or remove such prohibited Content provided such blocking or removal is carried out in accordance with the complaints procedure contained in the Code.

7.2

The existence of terms and conditions will be displayed on the IASP's website in a manner and form easily accessible by its subscribers by way of a link or other similar methods.

7.3

Once an IASP is notified by the Complaints Bureau that its user or subscriber is providing prohibited Content and the IASP is able to identify such subscriber the IASP will take the following steps:

(a)

Within a period of 2 working days from the time of notification, inform its subscriber to take down the prohibited Content.

(b)

Prescribe a period within which its subscriber is to remove the prohibited Content, ranging from 1 to 24 hours from the time of notification.

(c)

If the subscriber does not remove such prohibited Content within the prescribed period, the IASP shall be entitled to suspend or terminate the subscribers' access account.

7.4

An IASP will place on its website a hyperlink to the Content Forum website to enable subscribers to obtain the information specified above. If an IASP does not have a website, it will provide its subscribers with the Content Forum website address.

8.0 - Content Aggregator

8.1

A Content Aggregator being a person who aggregates and/or purchases Content shall incorporate terms and conditions in the contracts and legal notices as to terms of use with users, subscribers and content providers of their services. This shall include the following terms:

(a)

Within a period of 2 working days from the time of notification, inform the user, subscriber or content provider to take down the prohibited Content.

(b)

Prescribe a period within which the user, subscriber or Content provider is to remove the prohibited Content, ranging from 1 to 24 hours from the time of notification.

(c)

If the user, subscriber or Content provider does not remove such prohibited Content within the prescribed period, the Content Aggregator shall have the right to remove such content.

8.3

A Content Aggregator will place on its website a hyperlink to the Content Forum website to enable users and subscribers to obtain the information specified above.

8.4

Where a Content Aggregator has editorial rights over the substance of Content, it shall comply with Part 2 (Guidelines on Content) of the Code.

9.0 - Link Provider

9.1

A person who provides links to other sites containing prohibited Content shall remove the link to such sites within 24 hours of being notified by the Complaints Bureau of the continuing existence of prohibited Content on such site.

10.0 - Internet Content Hosting Provider (ICH)

10.1

An ICH being a person in its capacity of merely providing access to Content which is neither created nor aggregated by itself but which is hosted on its facilities shall incorporate terms and conditions in the contracts and legal notices as to terms of use with users and subscribers of their services. This shall include the following terms:

(a)

Users and subscribers shall comply with the requirements of Malaysian law including (but not limited to) the Code and shall not provide prohibited Content nor any Content in contravention of Malaysian law;

(b)

The ICH shall have the right to withdraw its hosting services where a user or subscriber contravenes (a) above; and

(c)

The ICH shall have the right to remove such prohibited Content provided such removal is in accordance with the complaints procedure contained in the Code.

10.2

Once an ICH is notified by the Complaints Bureau that its user or subscriber is providing prohibited Content and the ICH is able to identify such subscriber or user, the ICH will take the following steps:

(a)

Within a period of 2 working days from the time of notification, inform the user or subscriber to take down the prohibited Content.

(b)

Prescribe a period within which the user or subscriber is to remove the prohibited Content, ranging from 1 to 24 hours from the time of notification.

(c)

If the user or subscriber does not remove such prohibited Content within the prescribed period the ICH shall have the right to remove such Content.

10.3

An ICH will place on its website a hyperlink to the Content Forum website to enable users and subscribers to obtain the information specified in Parts 7.1 - 10.2 above.

Examples in Applying Specific Measures

X, who is based in Kuala Lumpur, provides an Online lifestyle magazine which can be accessed by anyone from any part of the world. X's portal is hosted on Y's servers. Y's servers are located in Penang.

X provides his own content and third party Content. In his arrangement with the third party Content providers, he does not have the rights to edit the Content. Most third party Content is pushed onto his site automatically without X having the opportunity to view the Content beforehand.

X is a subscriber of Z's Internet access services.

In this instance:

•

X is both a content provider and content aggregator

•

Y is an ICH

•

Z is an IASP

The Complaints Bureau receives a complaint that one of the web pages of X's online magazine contains content which is obscene as defined in the General Guidelines on Content contained in Part 2 of the Code.

Scenario 1:

If X receives a notification from the Complaints Bureau it must:

(a)

where X has provided the content, remove the prohibited content.

(b)

where the content is provided by a third party W, inform W to remove the content within a period ranging from 1 to 24 hours. The period prescribed is at X's discretion. If W fails to remove the prohibited content, it shall be removed by X.

Scenario 2:

If Y receives a notification from the Complaints Bureau, it must notify X to remove the Content within a period ranging from 1 to 24 hours. The period prescribed at Y's discretion. In this instance, Y gives X 4 hours. X may either remove the prohibited Content itself or direct W to remove the Content. If the prohibited Content is not removed within 4 hours, it shall be removed by Y.

Scenario 3:

If Z receives a notification from the Complaints Bureau, it must notify X to remove the Content within a period ranging from 1 to 24 hours. The period prescribed is at Z's discretion. In this instance, Z gives X 12 hours to remove the Content. X may either remove the prohibited Content itself or direct W to remove the Content.

If the prohibited Content is not removed within 12 hours, Z can suspend or terminate X's access to the Internet.

If X is not Z's subscriber, Z will not be required to take any measures.

11.0 - Measures Not Required

11.1

IASPs, ICHs and Content Aggregators shall not be required to undertake any of the following:

(a)

Provide rating systems for Online Content;

(b)

Block access by their users or subscribers to any material unless directed to do so by the Complaints Bureau acting in accordance with the complaints procedure set out in the Code;

(c)

Monitor the activities of users and subscribers; or

(d)

Retain data for investigation unless such retention of data is rightfully requested by the relevant authorities in accordance with Malaysian law.

12.0 - Definitions

12.1

For the purposes of interpretation, should there be any inconsistencies between the definitions in this Part and definitions elsewhere in this Code, those in this Part shall apply. In this Part, unless the context otherwise requires.

Access	means its ordinary meaning i.e. a means of entering; a means or a right of using, reaching or entering. It is not the definition in section 6 of the Act;
Content	for the purposes of this Part, means Content as defined by the Act transmitted through a variety of technology but does not include: a) ordinary private and/or personal electronic mail other than bulk or spammed electronic mail; b) content transmitted solely by facsimile, voice telephony, VOIP and which is intended for private consumption; or c) content which is not accessible to the public whether freely, by payment of a fee or by registration, including (but not limited to) content made available by way of a closed Content Application Service or a limited Content Applications Service under Sections 207 and 209 of the Act respectively;
Content Aggregator	means a person who aggregates and/or purchases Content;
Internet Access Service Provider	means a service provider who provides users with access to the Internet including (but not limited to) the World Wide Web;
Internet Content Hosting Provider	means a provider in its capacity of merely providing access to content which is neither created nor aggregated by itself but which is hosted on its facilities;
Link Provider	means a person who provides links to other sites;
Online	means a networked environment which is available through a connection to a network service wherein Content is accessible to and/or by the public whether for a fee or otherwise;
Online Content Developer	means a Code Subject who develops files of content for the Code Subject or on behalf of others to be made accessible online;
Prohibited content	means such Content expressed to be prohibited under Part 2 of the Code and Part 5.1 of this Part;
Provide	in relation to Content means for a Code Subject to make available Online content where the Code Subject has: a) full knowledge of the substance of the content; and b) control over the substance of such content. To the extent it does not conflict with the above definition, the following activities are excluded from the ambit of the above definition: a) the enabling of access including (but not limited to) by way of providing connectivity or links to such Content; b) the aggregation of such Content; and c) the hosting of Content online;
User	a person accessing Online Content; and
Web page/ web site/ site	means files of Content accessible on the World Wide Web by a requested URL.

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