LAST month, we discussed the Communications & Multimedia Act 1998 (CMA).
This issue, we shall discuss the industry forums that the Malaysian Communications and Multimedia Commission (the MCMC) can designate under the CMA. Some have already been designated in fact.
Under the CMA, the MCMC can designate (or appoint) four industry forums: The Access Forum, the Technical Standards Forum, the Consumer Forum and the Content Forum. These four forums can create what are called “voluntary industry codes” relevant to their objectives.
Before the MCMC designates an industry body to be an industry forum, it must be satisfied that the body fulfils three conditions: 1) The membership of the body is open to all parties; 2) the body has a written constitution; and 3) the body is capable of performing as required by the CMA.
After the MCMC is satisfied of this, it may make the designation by giving a written notice to the body. The body must then send the MCMC a written notice agreeing to this.
Thereafter, the designation is registered by the MCMC, which may withdraw this designation at any time if the body fails to satisfy the three conditions above.
Upon the MCMC's request or on its own volition, the body – which would now be called a forum – can prepare a voluntary industry code. This code also has to be registered with the MCMC to be effective.
Interestingly, the MCMC has the power to refuse to register the code if it feels that insufficient consultation with the public was done in the creation and development of the code.
However, if it refuses to register the code, it must give written reasons to the forum.
The industry codes are a move towards what is called self-regulation, where involvement from the regulator is reduced to a minimum as the industry regulates itself.
We will see in next month's installation of the Cyberlaw Column how one of the codes operate to better understand this unique and innovative concept of self-regulation.
It is a unique concept because Malaysia's law (and indeed the common law used by Commonwealth countries) rely substantially on a rule and consequence-based traditional system, where a prohibitive rule is established and a penalty or consequence is created to handle cases where the rule is broken. Thus, this concept of self-regulation breaks new ground as the private sector attempts to be its own so-called “policeman.”
The MCMC can create a voluntary industry code if a type of voluntary code has not been developed yet by the designated industry forum, and where it feels that the latter will not create the code for any reason.
The MCMC also has the responsibility of ensuring that there is only one type of industry code which is applicable to a particular matter or group of persons. If there is any ambiguity or uncertainty, a company or a person may apply to the MCMC for its opinion on which code is applicable to the person or company.
Generally, compliance with the codes is not mandatory. However, compliance of the code is a defence in court if a person or company is sued for a matter dealt with in the code.
Persons or entities which have to comply with a particular code will be listed in the code itself. Other than that, the MCMC has the power to direct a person or a class of persons (or companies) to comply with a particular code.
A person or a company which fails to comply with such a direction is liable to pay a fine of no more than RM250,000 to the MCMC.
The MCMC may revoke any of the codes if the relevant forum restricts its membership, does away with its constitution or does not perform its obligations under the CMA.
The CMA also enables the creation of a new code by a particular forum to replace an existing code. The MCMC must also have a register of all codes created.
Access Forum
The MCMC designated the Malaysian Access Forum Berhad (MAFB) as the Access Forum last year. Representatives from the telecommunications industry form the MAFB.
The main objective of the MAFB is to come up with the access code and to make recommendations to the MCMC regarding network services, and the network facilities and/ or content application services that should be added to or removed from the Access List.
The Access List is a list of services and facilities which shall be made available by providers to any other provider who makes a written request to the former to use the latter's service or facility.
Whatever it is, the MCMC still has to be satisfied that MAFB consulted with interested persons and that MAFB's representatives were unanimous in supporting the recommendation.
The main point of having the Access List is to promote cooperation and coordination amongst industry players, as it will set model terms and conditions for access to any of the facilities or services included in the Access List.
The code may include rate methodologies, sharing of technical information and the protection of intellectual property and commercial information.
Technical Standards Forum
The MCMC has not designated the Technical Standards Forum yet as the members are busy amending the relevant body's constitution.
The code which will be created by the forum must include requirements for network interoperability, including network capabilities like calling line identification and pre-selection capabilities, and the promotion of the safety of network facilities.
It should also include the provision of facilities, services and cabling, requirements for qualified providers and installers, and the adoption of technical standards promulgated by international bodies.
Consumer Forum
The Consumer Forum was designated in 2001 and is called the Communications and Multimedia Consumer Forum of Malaysia (CFM for short).
The CFM is represented by 48 members from the telecommunications, broadcasting and service providers sectors (the “supply side”); and non-governmental organisations and public interest groups (the “demand side”).
However, anyone can be a member of the CFM – membership forms can be obtained from its secretariat in Petaling Jaya (one of its contact e-mail addresses is
[email protected]).
Interestingly though, membership to the CFM is totally voluntary – telcos, broadcasters and service providers are not obliged to join the CFM.
The objectives of the CFM are:
1) To be the one-stop centre for complaints of breaches of the consumer code;
2) To promote the national policy objectives stated in the CMA;
3) To draft, prepare and develop codes that protect the rights of the consumer pursuant to the provision of the CMA;
4) To engage in and undertake research on matters within its jurisdiction and to collect, prepare and distribute statistics that may be considered beneficial to all or any of the forum's objectives and purposes;
5) To provide an avenue and channel for complaints, disputes and grievances;
6) To recommend inexpensive and practical alternative dispute resolution procedures;
7) To recommend procedures for compensation and/ or any other mode of action to customers in the case of a breach of the provisions of the code;
8) To invite, collect and collate public viewpoints and opinion on consumer matters, to promote and create public and industry awareness of the codes and their compliances, to provide avenues for dissemination of information to the public and education regarding consumer rights, and regulations and technologies for the consumer;
9) To administer sanctions (penalties) on breaches of the codes by members of the forum;
10) To monitor service delivery of the communications and multimedia industry concerning consumer interests to ensure compliance with the codes;
11) To regularly update the MCMC on the progress of the forum; and
12) To promote and encourage high standards of service, conduct and performance throughout the communications and multimedia industry.
CFM has an elected Council consisting of 13 members – seven from the demand side and six from the supply side.
The Council has set up four working committees to assist it in achieving its objectives – the Code Drafting Committee, the Education & Promotions Committee, the Membership Committee and the Complaints Handling Committee.
The code that CFM created is called the General Consumer Code of Practice. It was launched late last year and it seems to be the very first voluntary code under the CMA.
A lot of effort was put into the code, as it took four years to draft it. The code is to be adhered to by all communications and multimedia service providers, including members of the CFM.
Content Forum
The Content Forum was also designated by the MCMC in 2001, and is called the Communications and Multimedia Content Forum of Malaysia (or CMCF).
It was registered as a society and comprises representatives from both the demand and supply sides. There are six ordinary member categories for CMCF: 1) advertisers; 2) audiotext service providers; 3) broadcasters; 4) content creators or distributors; 5) Internet access service providers; and 6) civic groups.
In addition to the Content Code, the CMCF is also developing the Complaints Bureau that will seek to address consumer grievances. It will receive, consider, mediate and if necessary, adjudicate and make a ruling on matters relating to the alleged breaches to determine if indeed there has been a breach of the Code.
It would be interesting to know what type of procedures there will be relating to appeals of the Bureau's decisions, the constitution of the adjudication panel and the actual enforceability of the Bureau's rulings (i.e. what happens if an individual or company goes against the Bureau's ruling).
The CMCF's aims and objectives are:
1) To promote national policy objectives enshrined in the CMA;
2) To establish Malaysia as a major player in the communications and multimedia industry;
3) To enable a balanced representation of the relevant sectors of industry and society to ensure that the Consumer Code which is developed will be reflective of the community at large;
4) To develop a Content Code which may include model procedures for classifying and dealing with indecent or offensive content disseminated by way of a networked medium;
5) To provide an avenue of complaint for content; and
6) To administer sanctions for breaches of the consumer code.
The Content Code will set out procedures and guidelines for good practice and standards of content disseminated for public consumption, including model procedures for dealing with indecent and offensive content. It will seek to identify offensive and objectionable content as well as determine the obligations of content providers.
It would be interesting to note the provisions of the Content Code, especially since the CMA itself and the MSC's Bill of Guarantees provide that there will not be any censorship on the Internet, as well as the fact that traditional laws – like the law against defamation and the law on trade descriptions, for example – can handle certain “objectionable” content.
There are two categories of membership: Ordinary members are industry, business and trade organisations as well as firms, companies and corporate bodies established or incorporated in Malaysia interested in content emanating from the communications and multimedia industry.
An Associate member would be any individual, firm, society or body established or incorporated under the laws of Malaysia who do not fall under any of the six categories who are interested in content.
Innovative law-making
The self-regulatory approach of the CMA and the codes is a new and unique approach to law-making.
It gives the converging industries an opportunity to show to the public at large that it is able to impose certain standards upon itself which it will adhere to. It also gives the private sector the opportunity to show Malaysians that it can be an efficient “self-regulator.”
Perhaps it could be more efficient than a third-party regulator. Whatever it is, the Government should always be mindful that when a body regulates itself (and traditionalists will assure you that no such thing is possible), it may not be so harsh on itself – as opposed to a third party which may be more objective.
Thus, the MCMC must play the role to ensure that the codes remain applicable and are somehow adhered to by the relevant players.