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Dealing with demands from foreign governments (January 2016)

Summary: US companies obviously need to obey US laws, but dealing with demands from foreign governments can present challenging dilemmas. The Sarawak Report, a London-based investigative journalism operation that reports on issues and corruption in Malaysia, was banned by the Malaysian government in the summer of 2015. The publication chose to republish its own articles on the US-based Medium.com website (beyond its own website) in an effort to get around the Malaysian ban.

In January of 2016, the Sarawak Report had an article about Najib Razak, then prime minister of Malaysia, entitled: “Najib Negotiates His Exit BUT He Wants Safe Passage AND All The Money!” related to allegations of corruption that were first published in the Wall Street Journal, regarding money flows from the state owned 1MDB investment firm.

The Malaysian government sent Medium a letter demanding that the article be taken down. The letter claimed that the article contained false information and that it violated Section 233 of the Communications and Multimedia Act, a 1998 law that prohibits the sharing of offensive and menacing content. In response, Medium requested further evidence of what was false in the article.

Rather than responding to Medium’s request for the full “content assessment” from the Malaysian Communications and Multimedia Commission (MCMC), the MCMC instructed all Malaysian ISPs to block all of Medium throughout Malaysia.

Decisions to be made by Medium:

  • How do you handle demands from foreign governments to take down content?
  • Does it matter which government? If so, how do you determine which governments to trust?
  • How do you determine the accuracy of claims from a foreign government regarding things like “false reporting”?
  • What are the trade-offs of being blocked entirely by a country?

Questions and policy implications to consider:

  • Taking down content that turns out to be credible accusations of corruption can serve to support that corruption and censor important reporting. Yet, leaving up information that turns out to be false can lead to political unrest. How should a website weigh those two sides?
  • Should it be the responsibility of websites to investigate who is correct in these scenarios?
  • What is the wider impact of an entire website for user generated content being blocked in a country like Malaysia?

Resolution: The entire Medium.com domain remained blocked in Malaysia for over two years. In May of 2018, Najib Razak was replaced as Prime Minister by Mahathir Mohamad (who had been Prime Minister from 1981 to 2003). However, in 2018, he was representing the Pakatan Harapan coalition, which was the first opposition party to the Barisan Nasional coalition to win a Malaysian election since Malaysian independence (Mahathir Mohamad had previously ruled as part of the Barisan Nasional). Part of Pakatan Harapan’s platform was to allow for more press freedom.

Later that month, people noticed that Medium.com was no longer blocked in Malaysia. Soon after, the MCMC put out a statement saying that Medium no longer needed to be blocked because an audit of 1MDB had been declassified days earlier, and once that report was out, there no longer was a need to block the website: “In the case of Sarawak Report and Medium, there is no need to restrict when the 1MDB report has been made public.”
 

Written by The Copia Institute, November 2020

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