Written by Irfan Suhail Mohamed
Second Year Law student
For some context, MalaysiaKini is an independent Malaysian news portal. It is a news portal that young activists such as myself look to for unbiased news, where we can form our own informed opinions. With MalaysiaKini’s recent Contempt of Court case, many are left wondering what state our country’s freedom of speech is in. How has freedom of speech been curtailed by this recent case? Let’s divulge.
MalaysiaKini’s Contempt of Court
In the majority judgement led by Court of Appeals President Rohanna Yusuf, the Federal Court was of the opinion that MalaysiaKini was liable for third party comments on its news portal and was fined MYR500,000. This sets a dangerous precedent that news portals and possibly social media sites would have to closely monitor public comments on websites, and are responsible for these comments posted by third parties. Its implications are two-fold. Firstly, that online debate and dialogue would be censored and secondly, independent and free media would be infringed upon. The practical implications of such liability could mean news portals closing comment sections altogether. A dangerous question would then also be raised, could comments be systematically removed? As stated by the Centre for Independent Journalism, this case stands to limit the reach of the free press especially with the use of Section 114A of the Evidence Act 1950. The 2012 amendment, regressively, states that the publisher of the content is presumed to also be the publisher of comments on the website. This amendment was met with caution and protest. Several large websites held an Internet Blackout Day on the 14th of August 2012, perhaps a protest of such is again in order. The Centre for Independent Journalism has reiterated its call for Section 114A to be repealed, and I believe rightfully so. There must be a distinction between a publication’s content and a third parties’ public comments. The former must not be held liable for the latter as this would disrupt the principles of free speech and the right to dissent. This was the minority judgement of the sole dissenting Justice, Justice P Nallini; ‘that s. 114A in no manner imputes guilt or liability on the part of the "publisher". It merely alters the normal course of proof such that it becomes incumbent upon the presumed publisher to explain why he is not responsible for the content on the Internet portal or site.’ Further, her Ladyship referred to the Malaysian Communications and Multimedia Code (MCMC), which provides that internet intermediaries such as Malaysiakini are only liable the moment it becomes aware of the existence and content of the third-party comments. In the Court's deliberation, a distinction was made between a news portal and social media platforms. In the case of Prashant Bushan it was held that twitter had no control over what was posted by its users. The Court dangerously presumed that a news portal had the power to control comment sections and limit interactions. This presumption is damaging to journalism and our free speech in general. News portals no doubt have a responsibility to the wider public to limit hate speech and derogatory remarks, this power must not however be used to impulsively and systematically curtail genuine criticism. The media and news play a massive role in educating and providing healthy criticism, this ruling stands in the way of this mission. News without healthy criticism and opinions would constitute plain propaganda, clear oppression of discourse, even more so in the context of today's misinformation of Covid-19 facts. After all, in a functioning democracy, the most important concept is a well-informed electorate.
A Publisher’s Right to Publish
Prior to the MalaysiaKini case, news spread that former Attorney-General Tommy Thomas had written a book containing memoirs of his time in Pakatan Harapan’s (Alliance of Hope Government Coalition) short-lived Administration. While incredibly well-received, becoming a quick best-seller, the authorities went out of their way to unnecessarily raid the publisher’s offices, seizing material following police reports lodged. As part of the official investigation, the publisher’s role in Tommy Thomas’ controversial memoirs was to be. The publisher, Gerakbudaya, should be free to publish material at its own discretion so long as its material is not banned by the Home Ministry. Freedom of speech is diminished when the State can command what should be published. As a Parti Sosialis Malaysia (Socialist Party of Malaysia) Central Committee member comments, ‘why are public bodies wasting public funds on pointless investigations?’. We see all too clearly that freedom of speech can be curtailed by a publisher's right to publish.
The People’s Verdict
This case sets a dangerous precedent where liability for public comments, i.e the qualified right to free speech, is placed on the news portal and gives us cause for worry. This judgement further disincentivises news outlets in using comment sections for fear of litigation and prosecution where public comments are found to be seditious or offensive. In my opinion, the judiciary should be taking a more proactive and constructive role in dealing with criticism. Again, in Justice P Nallini’s dissenting judgement she lamented that MalaysiaKini had taken appropriate steps to combat the ‘objectionable content’. That being said, I believe that the most important verdict out of this ordeal is, as a Twitter user puts it, the verdict of the people. Within hours of news breaking that MalaysiaKini was being fined MYR500,000, Malaysians poured in by the masses to show solidarity and support with donations and messages of support. The movement was an extension of the #KitaJagaKita campaign. Translated from Malay, the campaign means that ‘We take care of us’. The Judiciary must be wary and stay in touch with the Rakyat (public) to avoid the dangerous feeling of an ‘us’ vs ‘them’. Malaysia and Malaysians deserve mature and independent journalism, manifested by our solidarity. We’ve shown that we are willing to pay for it. For all its good faith earned this year with successful prosecutions of high profile public corruption, the Judiciary should not turn to censorship and oppressive laws.
Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor (Civil Application No. 08(L)-2-06/2020(W)
Evidence Act (Amendment) (No. 2) Bill 2012.
Damien D. Cheong and Yeap Su Yin, ‘Malaysia’s internet blackout: politicization of online activism?’ (East Asia Forum, 2012).
Malaysia Communications and Multimedia Act 1998
Prashant Bushan & Anor, Suo Motu Contempt Petition (Crl) No. 1 of 2020