Efforts to formulate laws for cyberspace should not focus on defamation or other offences, but address the many unanswered questions of jurisdiction, enforcement and procedure concerning such offences, said a legal expert.

According to University of Ulster senior law lecturer Dr Venkat Iyer, it would be "utterly wrong to assume that cyber-libel requires a completely new set of laws."

"At the end of the day, libel is libel whether committed online or offline, and the substantive law on defamation is therefore quite adequate," he told malaysiakini via an email interview.

Venkat - who counts among his research interests and expertise constitutional law, media law and human rights - has worked in Amnesty International's Legal Office in London, and has also carried out special projects for international groups such as Article IX, the International Commission of Jurists, and the Lawyers' Committee for Human Rights (now Human Rights First).

Commenting on the recent spate of action taken by the authorities against bloggers, he said "any attack on the media should raise concerns in free societies".

He also found it surprising the "near-total blackout of the words or statements in the blogs that have been alleged to have breached the laws."

"This makes it very difficult for an outsider to judge how justified the government may be in taking legal action against bloggers, as they appear to be doing according to the reports in the media," he noted.

Technical issues

Last week, Umno lodged a police report against political website Malaysia Today . Prior to that, PKR webmaster and blogger Nathaniel Tan had been detained by the police over an anonymous posting on his blog referring to corruption allegations against a minister.

Bloggers Ahirudin Attan and Jeff Ooi are also being sued for defamation by the government-linked New Straits Times Press group.

In the midst of these actions, Minister in the Prime Minister's Department Nazri Abdul Aziz had said the government was looking at formulating new laws to allow it to monitor and act against offending bloggers.

The proposed legislation was not intended to stifle the freedom of the Internet but "to put a stop to the freedom to lie in the blogsphere," said Nazri.

Previously, malaysiakini reported on the many pitfalls of cyberspace that could lead its users, inadvertently or otherwise, to be sued.

However, Venkat said where new laws or legal approaches are required are in relation to jurisdictional, enforcement, procedural and other technical issues.

"My own view is that there is only so much that the law can do to prevent or control cyberspace becoming a new breeding ground for defamation, given the devilishly difficult problems that arise in relation to jurisdiction, choice of law, enforcement of judgements, et cetera," he said.

He said even initial questions of 'forum' contain ample space for debate and deliberation by governments and government authorities.

In the case of defamation suits, for example, should they take place at the plaintiff's place of residence or business where the alleged 'damage to reputation' had taken place? Or should the forum be the defendant's residence where the offending material was uploaded onto the server?

'Victims', Venkat noted, may have more than one place of residence or location of business. Defendants, moreover, may have two or more servers from which materials are uploaded.

In terms of where the damage was suffered, furthermore, should the defamation suit target all those places where the 'victim' suffered damage? he asked.

In that case, he said, material on the Internet may have impugned the reputation of the plaintiff in more than one state or country.

He pointed out that following the Australian High Court's 2002 case of Gutnick v. Dow Jones & Co. Inc, the High Court was criticised for deciding the forum of the suit to have been Victoria, Melbourne, where the damage had occurred.

Various publishing houses warned that following such a decision, companies can be sued in each and every state or country where people may feel their reputation had been adversely affected.

Furthermore, in the event a suit targeted an alleged online offender at the location of its server, what if the country or state contained lax laws or enforcement? asked Venkat

How are differences between jurisdictions in terms of cyber laws be addressed?

'Sledgehammer' tactics

Venkat also said the question has to be addressed of whether, and to what extent, intermediaries on the Internet - such as Internet Service Providers (ISP), data-centers, and even domain-name centers or registrars - should be held accountable for cyberspace offenses.

Among the pragmatic tests that can be taken to determine the liability of an ISP is to ask whether it is reasonable for the ISP to read every posting hosted by it; whether the ISP has adopted sensible measures to prevent abuse of the service being offered by it, and whether, having come to know about a possible case abuse, it has taken reasonable steps to mitigate the problem, he said.

"It would be wrong to adopt sledgehammer tactics to deal with such problems, just as it would be unacceptable to deny victims of cyberspace offences any relief," said Venkat.

On balancing between the need to curb racial and religious incitement, and 'genuine' social or political dissent, he said cyber crimes are best fought by having clearly-defined, sensible, easily-accessible and properly focused laws coupled with measures of effective self-regulation.

"It has to be a combination of the two. There is clearly a need for specialist law-enforcement personnel who are trained in forensic computing. These teams will, of course, have to abide by the normal rule of police behaviour and not be a law unto themselves," he said.

"When you come to think about it, it is not all that different from a similar balance that we expect from other media. The only major differences are the (Internet's) ease of access and wider reach, which should clearly be borne in mind," he added.