means and the person who is making or circulating the seditious publication cannot be identified, action can be taken under the CMA to prevent access to it. Fortunately, beyond the alterations discussed above, the amendment itself does not include any provisions or additional punishment for seditious comments made online. The other legal amendment that deals with the criminalisation of freedom of expression is the potential amendment of the Communications and Multimedia Act 1998. Although it has been a matter of discussion since 2015, there has been no concrete draft law tabled or released publicly. As of August 2017, the amendment had yet to be tabled in Parliament or produced in any form.100 Rumours derived from the comments of ministers with regard to the amendment include the possibility of registration of bloggers and increased penalties for offences as part of the proposed changes.101 To this end, one can say that the proposed and known amendments to laws that directly affect the criminalisation of freedom of expression would not necessarily alter the current status quo in terms of criminalisation. However, the proposed amendments may well increase the “costs” of being found guilty for an offence. Furthermore, amendments to the Criminal Procedure Code could be equally damaging in this regard. Amendments to the Criminal Procedure Code made in December 2016 removed a degree of judicial discretion in terms of sentencing for first time offenders when they are charged for a serious offence. Serious offence denotes an offence punishable by imprisonment for a term of 14 years or more.102 While most offences discussed above would not usually fall under this criterion, there are possibilities that future amendments would restrict or limit existing protections that could mitigate prosecution against human rights defenders. Summary and conclusion Reflecting on the overall circumstances described above, one would reasonably conclude that freedom of expression in Malaysia both offline and online is subjected to various degrees of criminalisation. While criminalisation is not necessarily common in the greater scheme of things, cases documented by SUARAM suggest a trend in which an average person could be arrested, detained, harassed and prosecuted for a relatively innocuous comment made on Facebook or other online social media. For better or for worse, the lack of distinction between the application online and offline of laws that criminalise freedom of expression means that all of the existing laws that penalise or restrict freedom of expression can cross over to application in the online sphere. As noted in some of the cases above, a comment made online could potentially be “double the trouble”, as an individual can be charged for a traditionally offline crime under laws such as the Sedition Act 1948, and at the same time, charged for an offence under the Communications and Multimedia Act 1998. With the rise of social media applications and the growing popularity of instant messaging applications on a global level, with almost nationwide adoption, state authorities would naturally feel more inclined to extend their existing powers to cover these platforms. On one hand, the government would reiterate the need for “holistic” solutions and prevention with regard to issues of security, online fraud and “fake news”, and would utilise this as leverage for further control and punitive measures; on the other hand, the imposition of additional regulations with expanded regulatory powers afforded to a politically aligned entity would mean that legitimate interest in freedom of expression would likely be compromised to achieve the former. With the rising prevalence of hate crimes and death threats against activists and other actors in the civil and political rights discourse, there is a growing need for laws that can restrict and criminalise such behaviours online and offline. Realistically, at this juncture, suggestions or implementation of any further regulations would likely be met with scepticism with regard to the sincerity of the laws and their implementation. This unfortunate dilemma leads to the question: How do we address the need for legitimate protection when the institution implementing it is not necessarily trustworthy? 100 Malaysia Kini. (2016, 9 March). Salleh: Amendments to internet laws won’t be tabled now. Malaysia Kini. www.malaysiakini.com/ news/333286 101 Astro Awani. (2016, 22 February). Amendment to Communications and Multimedia Act 1998 in March. Astro Awani. english. astroawani.com/malaysia-news/amendment-communicationsand-multimedia-act-1998-march-95481 102 52B of the Penal Code. 94 / Unshackling Expression