As stated in our previous Alert, the Malaysian Communications and Multimedia Content Code 2022 (“Content Code 2022”) was officially registered and came into effect on 30 May 2022.
 
The Content Code 2022 has adopted most of the proposed amendments set out in the Public Consultation on the Communications and Multimedia Content Code Revamp 2021 (“Consultation Paper”), i.e. in the draft of the revamped version of the Content Code (“CCR 2021”) which was previously discussed here.
 
This Alert will set out some of the notable provisions in the newly implemented Content Code 2022:
 
 
Expansion of the scope of coverage of provisions related to advertisements
 
Incorporating the proposed amendments in the CCR 2021, the scope of the provisions related to advertisements in the Content Code 2022 has been extended to advertisements communicated over the networked medium and displayed on devices that can process content electronically (including television, radio and digital media¹) and includes those by “online marketplace operators” and “influencers” (both of which are now defined under the Content Code 2022).
 
The Content Code 2022 further provides that advertisements or marketing communications that involve third parties under a commercial arrangement must be clearly disclosed as being done in exchange for payment in cash or some other reciprocal arrangement in lieu of cash. The rationale behind this is to ensure that influencer marketing is not used as a tool to mislead consumers. The Content Code 2022 prescribes that, as an example, disclosures should be placed with the endorsement content itself with a label such as ‘Advertisement’, ‘Advertisement Feature’, ‘Ad’, ‘Sponsored’.
 
 
Expansion of the scope of coverage to online service providers
 
Online service providers are now added to the list of code subjects under the ‘Specific Online Guidelines’ under the Content Code 2022, which covers all content initiated, uploaded, disseminated or made available online in Malaysia. Under the Content Code 2022, online service providers (as well as other code subjects) should adopt a responsible approach in providing content by implementing “reasonable, practicable and proportionate measures” and providing “a proactive and reactive mechanism” with regards to prohibited material or activity.
 
 
Prohibition against online abuse and gender-based violence
 
While the previous Content Code had existing provisions on violence, the Content Code 2022 introduces new prohibitions to address online abuse and gender-based violence whereby “content that incites or provokes any act of abuse and gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering abuse” is expressly prohibited. According to the executive director of the Communications and Multimedia Content Forum of Malaysia (“Content Forum”) in a recent podcast, this provision was included in consideration of the fact that Malaysia is a signatory for The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).²
 
 
Revisions in respect of provisions on Indecent Content
 
While indecent content has been generally prohibited even in the earlier version of the Content Code, the depiction of nudity is now allowed in limited instances under the Content Code 2022.  Specifically, there are exceptions for non-sexual depiction of nudity “based on art, information and/or sciences” provided that such depictions are not excessive or explicit in nature (e.g.  not shown for a prolonged period of time, and not too close up or gratuitous). This position is a distinct departure from the previous Content Code which prohibited nudity from being shown under any circumstances, unless approved by the Film Censorship Board.
 
 
Protecting the rights of Persons with Disabilities (PWDs)
 
The Content Code 2022 upholds the rights of PWDs in a two-fold approach – firstly, through the content itself whereby any reference to disability must be expressed in neutral terms and secondly, by requiring code subjects to ensure that PWDs have the right to equal access to information. Under the Content Code 2022, code subjects must endeavour to make reasonable accommodations to provide content and information in accessible formats and to implement appropriate technologies for PWDs to access the content.
 
 
Use of Religion in Advertisements
 
The executive director of the Content Forum indicated in a recent podcast that there has been an influx of advertisements and marketing campaigns that use religion as marketing gimmick.³
 
Under the Content Code 2022, the use of religion in any form of advertisements is prohibited. This prohibition includes, using religious personalities to provide religious testimonials for the promotion or endorsement of products or services, making claims and/or to provide false interpretations of the teachings of any religion which may mislead, create fear or give false promises to consumers.
 
 
Children in Advertising
 
Various new provisions and prohibitions were introduced in relation to advertisements targeting and featuring children (i.e., persons below the age of eighteen (18) years). Among others, the use of children in advertisements is discouraged unless the products advertised are relevant to them or unless the advertisement is shown in the context of promoting safety for children. Advertisements are also prohibited from directly exhorting children to buy products or subscribe to services shown in advertisements. Similarly, advertisements which have the intent of persuading parents or others to do the same in the context of children, are also prohibited.
 
 
Advertisements on intoxicating liquor
 
The Content Code 2022 now permits advertisements in respect of liquor/alcohol to be communicated over electronic based mediums based in Malaysia but such advertisements are not permitted on broadcast mediums such as television, radio and public digital platforms. This allowance is nevertheless subject to strict conditions and restrictions. There are clear restrictions regarding such advertisements e.g., it must not feature any person below 21 years old and must include a clear disclaimer that the advertisement is intended “strictly for non-Muslims aged 21 and above only”. Advertisements on liquor must also comply with the requirements under other applicable laws such as the Food Act 1983 and the Food Regulations 1985.
 
 
Advertisement by a licensed gambling or betting company
 
In line with the CCR 2021, licensed gambling and betting companies are now allowed to broadcast corporate social responsibility campaigns and public service announcements provided that the guidelines prescribed under the Content Code 2022 are adhered to. For instance, licensed gambling/betting companies must ensure that such campaigns or messages are issued by the companies’ charitable arm. Further, such campaigns or messages should not contain elements (e.g., name, taglines, logos) which could infer the gambling or betting aspects of the companies’ business. The Content Code 2022 provides a range of case studies on advertisements related to gambling products and services, for reference.
 
 
Ethical reporting of suicide cases
 
An issue that was not addressed in the Consultation Paper but was brought to light during the public consultation period was the reporting of suicide cases. The executive director of the Content Forum had stated in a recent podcast that there were many instances of news report or sharing of news on social media relating to suicide cases, and the content of which was in breach of the Ministry of Health (“MOH”)’s guidelines.⁴
 
As a result, the Content Code 2022 has made it a requirement that all suicide-related content must be reported and shared ethically and responsibly based on best practices and media guidelines including MOH’s Guidelines for Media Reporting on Suicide 2011.
 
 
Comments:
 
By adopting and incorporating most of the proposed revisions in the CCR 2021, the Content Code 2022 appears to be a step forward in addressing the concerns and issues arising from a highly digitised world where content is easily created, accessed and disseminated, often without much care or thought.
 
The fact that the Content Code 2022 has also implemented provisions which were not originally proposed in the CCR 2021 but were subsequently raised by stakeholders during the public consultation exercise also indicates a willingness by the Content Forum to reform our regulations accordingly to keep abreast with present-day issues.
 
In light of the substantial changes to the Content Code 2022 and certain departures from the previous Content Code, code subjects and relevant industry players are advised to take cognisance of the new provisions and to review their practices accordingly.
 
 
Alert by Jillian Chia (Partner), Natalie Lim (Partner), Beatrice Yew (Associate) and Nicole Oh Jia Yi (Associate) of the Technology, Media and Telecommunications Practice of Skrine.
 

---