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Malaysia: Public consultation on revamped Content Code until 10 December 2021

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In brief

The Communications and Multimedia Content Forum of Malaysia (“Content Forum“) has issued a public consultation paper titled “Revamp of the Malaysian Communications and Multimedia Content Code“, proposing a number of changes to the prohibitions, restrictions and requirements on electronic content, particularly in relation to advertising, as well as broader implications for online service providers and online marketplace operators. The closing date for submission of feedback to the Content Forum is 10 December 2021.

In depth

The Content Forum is an industry body designated by the Malaysian Communications and Multimedia Commission (MCMC) pursuant to the Malaysian Communications and Multimedia Act 1998 (CMA). As anticipated by the CMA, the Content Forum issued the Malaysian Communications and Multimedia Content Code (“Content Code“), which applies to all content over the electronic networked medium such as broadcasts on the television, the radio and the internet.

Despite being a voluntary industry code, the Complaints Bureau of the Content Forum (with whom members of the industry and the public may lodge complaints) may, among others, impose fines up to RM 50,000 (~ USD 12,000) for any breach of the Content Code. Additionally, the CMA provides that compliance with the Content Code provides a defence against any legal proceedings concerning any matter dealt with in the Content Code.

The public consultation paper proposes the following key changes to the Content Code:

  • Online service providers: Certain specific online guidelines in the Content Code will apply to online service providers, covering all content initiated, uploaded, disseminated or made available online in Malaysia. However, providers of over-the-top (OTT) content services who offer curated content directly to consumers over the Internet (such as VOD, linear OTT and other TV streaming services) are excluded.
  • Online marketplace operators: Advertising guidelines under the Content Code will be extended to operators of online marketplaces who are defined as persons who provide websites where products or services are marketed and sold by third parties.
  • Influencer marketing: Advertisements featuring influencers who are paid to endorse certain products or services of the advertiser must be clearly disclosed as such, so that influencer marketing is not used as a tool to mislead consumers
  • Children and advertising: A host of new prohibitions, restrictions and requirements will be introduced for advertisements addressed to or targeting children (i.e., below the age of 13). For instance, direct exhortation to a child to buy an advertised product or to persuade their parents to buy an advertised product for them will be prohibited.
  • Alcohol advertising: Advertisements on intoxicating liquor communicated over electronic mediums (except television and radio) will be allowed, subject to specific requirements and restrictions.
  • Advertising claims, testimonials and pricing: Further requirements and restrictions will be introduced for protection of consumers. For example, material information shall not be omitted or presented in an unclear, unintelligible, ambiguous or untimely manner that may likely mislead consumers.
  • Indecent content: Content on nudity will be allowed subject to the appropriateness to the context of the content, so long as it is not excessive and explicit in nature.
  • Accessibility: Reasonable accommodations should be made to deliver any content and information intended for the general public in accessible formats and technologies appropriate for persons with disabilities.
  • Advertising by gambling/betting company: The charitable arm of a licensed gambling/betting company will be allowed to provide messages on corporate social responsibility campaigns and public service announcements, provided that the specific guidelines in this regard are observed.  
  • Religion: Use of religion in advertisements will be generally prohibited unless allowed by law e.g., Halal certification and Islamic banking. There will also be specific broadcasting requirements for all religious content on Islam.

The Content Forum will continue to accept feedback on the public consultation paper until 10 December 2021. Given the breadth of coverage proposed by this revamp, online content providers and advertisers should consider the implications of these changes on their business and advertising practices, and contribute feedback as applicable using this form.

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Author

Kherk Ying Chew heads the Intellectual Property and Dispute Resolution Practice Groups of Wong & Partners. She has decades of experience in IP, commercial litigation, corporate compliance, information technology and Internet regulatory issues. She is ranked in Tier 1 for IP in Malaysia by Chambers Asia Pacific which has noted that Kherk Ying is "an acclaimed figure in the sector, drawing praise as a lawyer who is 'really commercial, very practical' and 'knows her subject impressively well." Asia Pacific Legal 500 inducted her into its Hall of Fame in 2021 for IP, it had commented that she is "highly respected for contentious and non-contentious work". Kherk Ying was also named in Benchmark Asia-Pacific’s Top 100 Women in Litigation for IP and Commercial Transactions (2020-2021). Kherk Ying won the Women Lawyer of the Year at the ALB Malaysia Law Awards in 2019. She is highly regarded for IP litigation, and has been named the "Best Female Lawyer in IP Litigation" by Euromoney Asia Women in Business Law Awards 2014. She is also recognised as a Tier 1 lawyer in enforcement and litigation by the World Trademark Review 1000, and ranked as a Tier 1 litigation and transactions professional by IAM Patent 1000. Kherk Ying is a registered trade mark, patent and design agent in Malaysia and the principal author of the CCH published Intellectual Property Laws of Malaysia. She is among the few selected trainers for an IP valuation course by Intellectual Property Corp of Malaysia (MyIPO) and is an accredited IP valuer by the World Trade Institute.

Author

Sonia is a partner in the Intellectual Property & Technology Practice Group of Wong & Partners. She returned to private practice after successful stints as general counsel of Hewlett-Packard Malaysia and Kimberly-Clark Malaysia, Philippines and Indonesia. In 2019, Sonia was recognised amongst leading in-house professionals in the Legal 500 GC Powerlist: Southeast Asia.

Author

Chun Hau Ng is an Associate in Wong & Partners, Kuala Lumpur office.

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