GOVERNMENT policing affecting freedom of expression in the arts is not new. Comedy group Instant Café Theatre was banned by Kuala Lumpur City Hall (DBKL) for a period, over a decade ago. This was after the actors defied a government directive to remove “all references to government policies, government agencies and mention of any person dead or alive.” The Seksualiti Merdeka festival was banned by the police in 2011. In 2013, police questioned artist Anurendra Jegadeva for an art piece expressing solidarity with Muslim Iraqis, after a report was lodged alleging the artist was insulting Islam.

From live performances to festivals to art pieces, the government is now demonstrating their interest in policing the showing of films. The latest government action impacting the arts is the charging of Lena Hendry, programme coordinator at Komas. On 19 Sep 2013, she was charged under the Film Censorship Act 2002 for screening a film that had not been approved by the Film Censorship Board (the Board). The film was a documentary on the Sri Lankan conflict entitled No Fire Zone, the Killing Fields of Sri Lanka. Lena’s case has been fixed for mention in the Magistrates Court on 22 Jul 2014.

How is the case against Lena Hendry an injustice and how does it affect everyone’s freedom of expression?

Incredible law

The law under which Lena Hendry is being charged, is unspeakably broad. Lena Hendry has been charged under section 6(1)(b) which prohibits the circulation, distribution, display, production, sale or hire of any non-approved film. Section 6(1)(a) is even broader – no one can even have in their possession or custody any such film. And film is defined as any record “of a sequence of visual images…capable of being used as a means of showing that sequence as a moving picture.” Under that definition – home videos, cartoons, Hollywood movies, even moving gif images – all constitute films under the Act.

The penalty for being found guilty of having such non-approved films in one’s possession is serious. Anyone who contravenes this law can be fined between RM5,000 to RM30,000 and/or be imprisoned for up to three years.

In an era where anyone with a smartphone can produce a video and instantly share it with hundreds, if not thousands, over social media – this law seems archaic at best, and ridiculous, at worst. Besides blatantly breaching international standards on freedom of expression, it is also unenforceable. The number of people who have broken this law would far outnumber the government’s capacity to monitor and prosecute even 10% of them.

Censorship vs Freedom of Expression

And yet, the law remains on our books. An application by Lena Hendry to set aside the charge on the basis of the law being unconstitutional was rejected by the High Court on 11 Apr 2014. The judge indicated it was necessary for an “independent body like the Board” to “monitor the contents of a film.”

Granted, many jurisdictions in the world do require films to be classified before they can be shown publicly, sold or rented. Such classifications are intended for various reasons such as protecting minors from harmful or disturbing material, or allowing people to choose the level of sexual or violent material they are exposed to.

To ensure however that people’s freedom of expression, which includes the freedom to receive information, is not unduly restricted, there are usually broad exemptions to classification. Australian legislation, for instance, has a long list of exempted categories of films which do not need classification. This includes films on current affairs, sporting events, family activities, musical presentations and educational videos. This ensures that postings of wedding or school sports days’ videos on Facebook don’t break the law, which would not be the case in Malaysia.

No such protections exist in Malaysia. Exemptions in Malaysia are available entirely at the government’s discretion. First, an exemption must be granted by the government minister in charge of the Film Censorship Board. Second, the only category specifically mentioned for exemption are films sponsored by the federal government. Third, the minister may impose any conditions when granting the exemption. And fourth, the minister must be satisfied that the exemption would not be against public or national interest.

Censorship vs Copyright

There is also a difference between censoring a film and protecting a film’s copyright. In the UK for instance, a license is required before a film can be screened publicly, but this is to protect the copyright owners of the film, who invested in its making. Such licences are easily obtainable upon the payment of an affordable fee, and different classes of licenses are available to differentiate between commercial ventures such as cinemas, and non-commercial ones such as film clubs. Public screening licences are also obtainable in Malaysia through the Motion Picture Licensing Corporation.

If permission has been obtained from the film’s copyright owners to screen the film publicly, or the film has entered the public domain, then such licensing requirements may possibly be waived.

Censorship and control

Malaysia’s laws however go far beyond protecting copyright and arbitrarily restricts freedom of expression. Ultimately, section 6 of the Film Censorship Act is all about the government retaining control over what is shown to people publicly. It may not have the capacity or the will to prosecute every citizen that posts videos online or screen films publicly, but it would like to cast the net broadly enough to take action if they think such videos threaten their position.

Hence, the ban in 2011 on the Undilah video released online, encouraging Malaysians to register to vote. In banning the video, the Malaysian Communications and Multimedia Communication cited the lack of approval from the Board as its reason for disallowing the video on the internet.

Such selective application of the law, culminating in the charge against Lena Hendry, is arbitrary and unjust. Malaysians have no certainty over when or how this law will be applied to them. Such restrictions are surely unconstitutional, as our Federal Court has ruled that any restriction on our fundamental rights must be necessary and proportionate to the aim it intends to achieve. Any restrictions must also be directly linked to the protection of national security, public order or public morality, and cannot be applied willy-nilly to any film produced by any citizen. This is all in line with international standards on what constitute legitimate restrictions to freedom of expression.

More awareness on the arbitrariness of section 6 of the Film Censorship Act and its chilling effect on freedom of expression is certainly needed. The government’s charging of Lena Hendry has certainly served to highlight this, but at personal cost to Lena and all those whom the government has sought to control for expressing a view they do not agree with.

Lena Hendry’s legal team has filed a new application in the High Court to declare the censorship law unconstitutional. There is a stay of proceedings on her current case in the Magistrates Court, pending the outcome of the application.