Many have concluded that the police raid

o­n malaysiakini amounts to censorship of the Internet. It may be many things but it does not amount to Internet censorship. To confuse what happened to malaysiakini with censorship is to miss a crucial point.

Censorship, generally speaking, means not allowing someone to publish by dint of the law. A striking example is the requirement to hold periodically renewable licences to print and publish newspapers and periodicals in Malaysia under the Printing Presses and Publications Act.

What the police did was (ostensibly) - upon an evaluation, pursuant to a police report, of what was published - to take steps (which might have required the raid and the confiscations) to investigate the alleged commission of a criminal offence which remains o­n the statute books, viz sedition. Whether they acted with speed and alacrity in this case but not in others is another matter entirely.

It is akin to child pornography o­n the Net. It can be produced and published without censorship. I mean o­ne does not need a licence to produce and publish it. However, that does not mean that those who put it there cannot be made to answer for breaching anti-pornography laws.

So the question is not censorship, but application of law. Many believe that behaviour o­n the Net should be subject to the laws of the land, within the vexed dynamics of applicable jurisdiction. Of course, whether you can catch them is another question; but the way the US and UK have managed to prosecute child porn consumers o­n the Net recently shows that it may not always be possible for such "criminals" to get away with it.

If malaysiakini operated from the jungles of the Main Range and published porn, criminally libelous material and stolen sensitive national security information, for example, surely everyone would agree that - if the perpetrators are caught - they should be prosecuted?

Defamation provides another example. The recent High Court of Australia (the highest appellate court in Australia) judgment in Dow Jones & Co Inc v Gutnick [2002] HCA 56 (Dec 10, 2002) shows that even if a defamatory statement is uploaded o­nto a server in New Jersey, if it is downloaded (i.e. simply viewed) in the State of Victoria in Australia, the publisher is answerable to the Victorian courts.

Contempt of court would have the same consequences. If a US Internet publication criticises an Australian court, it must answer for it in Australia. So, if malaysiakini attacks Malaysian judges in the performance of their judicial duties, it must answer to a Malaysian court if contempt of court proceedings are taken against it.

So, the issue is a little bit more complicated and the problem is not whether there is censorship, but whether laws which restrict freedom of speech, like the Sedition Act, Official Secrets Act (OSA) and Internal Security Act (ISA) should remain o­n the statute books.

The real question is not whether these laws should be applied to the Internet and Internet publications like malaysiakini (and why not?), but whether they should be applied at all!