Lawyer Foong Cheng Leong told FMT that Section 263 of the Act grants the authorities the power to require that ISPs block access to any site or platform from Malaysia. However, no penalties are prescribed under the provision, he said.
“The reason to block a platform or website can include dissemination of obscene, pornographic or copyrighted materials (such as movies).
“It can be considered a ‘ban’ but obviously, one would be able to access it through other means such as through a virtual private network (VPN).
“It is not illegal to use a VPN in Malaysia and it is not possible to ban VPN services in Malaysia as many other people use it for work and personal use,” said Foong.
However, he said the inconvenience of using VPNs may affect the popularity of, or ease of access to, such platforms. In addition, not everyone is savvy enough to use a VPN, he added.
Foong said MCMC may also act against Telegram under Section 233 for improper use of network facilities or network services. This section prescribes for an offence which is punishable with a term of imprisonment and a fine, he said.
“However, the provision provides that the person must have knowingly made that unlawful communication. It is on a case-to-case basis.
“In the present case, Telegram cannot be said to have made that unlawful communication as it is done by their users. They are merely a service provider,” said Foong.
Foong also said that while police action against Telegram is possible, complicated questions arise as to whether the platform owners and administrators can be subjected to Malaysian laws. The government would likely have to go through diplomatic channels to question and summon them, he said.
Previously, communications and digital minister Fahmi Fadzil said the government had called for MCMC to take action against Telegram for their refusal to cooperate with the ministry over complaints that pornography, among others, was being shared on the platform.
In his reply, spokesman Remi Vaugn said Telegram is firm in its decision not to participate in “any form of political censorship”.
Foong said Telegram may choose to ignore a summons, as the communications and digital ministry has no power to summon a foreign service provider.