Malaysiakini Contempt Proceedings - I have pasted the Press version the summary of the courts' decision both the Majority decision, and the Minority decision. It was a 6-1 decision. NOTE we have to really wait for the FULL JUDGMENT to understand it better.
Some quick comments:
1 - The contempt here was the contempt of scandalizing the court/judiciary - it is an archaic contempt, which in some jurisdictions like the UK they have by law abolished this Contempt. TIME TO ABOLISH CONTEMPT OF SCANDALIZING JUDICIARY/COURT?
2. Malaysia still do not have a CONTEMPT OF COURT ACT - Many have been asking for this to be enacted. Such an Act would also stipulate the possible penalties - maximum fines, imprisonment, etc ..
3. The fine of RM500,000 was exorbitant - Hopefully the written judgment will tell us why the court imposed so HIGH a fine, when the Federal Counsel allegedly was asking for a fine of RM200,000 - RM250,000. Hope the judgments will reveal the reason for the HIGH fine, and whether all the 6 judges were unanimous with regard the sentence...
'...the Attorney-General's representatives had only requested RM200,000 while Malaysiakini's lawyers, led by Datuk Malik Imtiaz Sarwar, suggested RM20,000 to RM30,000...'
4. The makers of the 'contemptous statements' have not been cited for contempt?
5. Despite the fact that the Respondent admitted -- 'Malaysiakini admitted that the comments are indeed offensive, inappropriate, disrespectful and contemptuous and regretted the publication of them.' - Did the judges look at the comments and determine whether they were 'contemptous' or not? I believe the court should have done this, irrespective of whether Malaysiakini admitted or not. We await for the full judgments to look at this.
6. Given Malaysiakini's admission, did that not MITIGATE the sentence? Wonder if they did not admit to this, would the FINE be maybe 3 times higher?
7. It impacts not just PRESS FREEDOM - but it has very serious implication on everyone's freedom of expression/opinion/speech more so, since many of us in this age, have various social media accounts - FB,Twitter, Blogs, etc which allows people to make comments. Some of these products do not even have the capacity for the owner of accounts to moderate comments ...So, the decision can have serious impact -worse still, as it is a Federal Court decisions which will bind the decisions of all lower courts..
8. In my opinion, a great injustice when the Federal Court was the court of first intance - hence there is NO RIGHT TO APPEAL TO HIGHER COURTS - is this FAIR? Should the court of first instance for contempt proceedings be at the the HIGH COURT, thus retaining the right to appeal to the Court of Appeal, and thereafter also the Federal Court..
9. The JUDICIARY is or ought to be INDEPENDENT, it is foolish to try to push blame to PM Muhyiddin or the current government....
** I too did submit to the Federal Court an amicus submission, which I hope the Court did consider before coming to this decision. {Now, that the decision has been made - I may later share with you this submission of mine)
PRESS
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA DI PUTRAJAYA
PERMOHONAN SIVIL NO.: 08(L)-4-06/2020 (W)
PEGUAM NEGARA MALAYSIA ...PEMOHONDAN
1.MKINI DOTCOM SDN BHD (No Syarikat: 489718-U)
2.KETUA EDITOR, MALAYSIAKINI ...RESPONDEN-RESPONDEN
CORAM: ROHANA BINTI YUSUF, PCA AZAHAR BIN MOHAMED, CJM ABANG ISKANDAR BIN ABANG HASHIM, CJSS HAJI MOHD ZAWAWI BIN SALLEH, FCJ NALLINI PATHMANATHAN, FCJ VERNON ONG LAM KIAT, FCJ ABDUL RAHMAN BIN SEBLI, FCJ
SUMMARY OF DECISION(MAJORITY)
[1] Before us is an application by the Honourable Attorney General(AG) for contempt of court against an online news portal, Mkini Dotcom Sdn Bhd (Malaysiakini) as the First Respondent and its Editor-in-Chief, Gan Diong Keng (‘Steven Gan’) as the Second Respondent.
[2]The Application pertains to the following comments published on Malaysiakini on 9.6.2020 following a Press Release by the Chief Justice which was republished on Malaysiakini website as “ CJ orders all courts to be fully operational from July 1” in line with the recovery phase of the Movement Control Order.
Ayah Punya kata:
The High Courts are already acquitting criminals without any trial. The country has gone to the dogs;
GrayDeer0609:
Kangaroo courts fully operational? Musa Aman 43 charges fully acquitted. Where is law and order in this country? Law of the Jungle? Better to defund the judiciary!
Legit:
This Judge is a shameless joker. The judges are out of control and the judicial system is completely broken. The crooks are being let out one by one in an expeditious manner and will running wild looting the country back again. This Chief Judge is talking about opening of the courts. Covid 19 slumber kah!
Semua Boleh –Bodoh pun Boleh:3
Hey Chief Justice Tengku Maimun Tuan Mat -Berapa JUTA sudah sapu -46 kes corruption -satu kali Hapus!!! Tak Malu dan Tak Takut Allah Ke? Neraka Macam Mana? Tak Takut Jugak? Lagi –Bayar balik sedikit wang sapu –lepas jugak. APA JUSTICE ini??? Penipu Rakyat ke? Sama sama sapu wang Rakyat ke???
Victim:
The Judiciary in Bolihland is a laughing stock.
[3] Malaysiakini admitted that the comments are indeed offensive, inappropriate, disrespectful and contemptuous and regretted the publication of them. Notwithstanding the admission both Malaysiakini and Steven Gan maintained that they both played no role in publishing them. The crux of the Respondents’ case in essence is,they cannot be held liable for contempt because the comments were posted by third party subscribers on Malaysiakini website. They were not the author or editor of the impugned comments. In short the Respondents’ case is they are not the maker or the publisher of the impugned comments, nor did they have anything to do with the publication of them. They in fact, have no knowledge of the comments till alerted by the Police. After which they promptly took them down.
[4] Whilst the case of a print media publisher the law is clear but the legal position is not as straightforward when it comes to the publication by third party internet postings. The legal liability of publishers and editors in this new media is blurred by the fact that these postings are made directly to the media platform by third parties without the usual editing process.
[5] In this regard, we are mindful that no clear jurisprudence has developed a precise theory to determine when an online platform provider who creates a technology, system or platform that enables wrongful behaviour, will be liable. The blame has now to be considered.
[6] We agree with the AG that section 114A of the Evidence Act presumes Malaysiakini as the publisher of the impugned comments. As publisher Malaysiakini under the law is liable for the contemptuous comments though by its third party subscribers. Malaysiakini however denied liability on the basis that they have no knowledge of the comments. They say they have rebutted the legal presumption because they have taken all the necessary steps to safeguards from liability of their third party subscribers’ comments.
[7] Having considered the defence of no knowledge and the rebuttals raised we are satisfied on the facts and evidence before us that Malaysiakini failed to established that it has no knowledge. We say so because in law knowledge can be inferred from surrounding facts. There is a whole of case authorities on this point. (see Leow Nghee Lim v R [1956] MLJ 128; Parlan bin Dadeh v Public Prosecutor [2008] 6 MLJ 19; Victor Chidiebere Nzomiwu & Ors v Public Prosecutor[2013] 2 MLJ 690;Public Prosecutor v Hoo Chee Keong[1997] 4 MLJ 451;and Public Prosecutor v Abdul Rahman bin Akif[2007] 5 MLJ 1).
[8]Richard Malanjum FCJ in Emmanuel Yaw Teiku v Public Prosecutor[2006] 5 MLJ 209held that proof of intention or knowledge could generally be inferred from proved facts and circumstances. It is difficult to do so by other meansunless there is a clear admission by the person himself.The principle of law is that to determine knowledge, the Court is concerned with reasonable inferences to be drawn from a concrete situation disclosed in the evidence and how it affects the particular person whose knowledge is in issue.
[9] The facts as adduced by Malaysiakini in our view bear testimony to its knowledge.Ultimately, Malaysiakini is the owner of its website, publishes articles of public importance, allows subscribers to post comments to generate discussions. It designs its online platform for such purpose and decides to filter usage of foul words and relies on all the three measures it has taken. In other words, the First Respondent designs and controls its online platform in the way it chooses. It has full control of what is publishable and what is not. In doing so it must carry with it,the risks that follow from allowing the way its platform operates. Malaysiakini cannot be heard to say that its filter system failed to filter offensive comments, when in fact it deliberately chooses to only filter foul language but not offensive substance. Though we remained perplexed how these comments even passed its filter looking at the language of the impugned comments.
[10]The three safeguards adopted by the First Respondent proved to have failed and do not efficiently control or prevent offensive comments from being published. The surrounding circumstances of the present case strongly suggest that the impugned comments were published without reservation and were only taken down upon being made aware of by the police.
[11]We cannot accept such failed measures as a complete defence. Malaysiakini cannot unjustifiably and irresponsibly shift the entire blame on its third party online subscribers, while exonerating itself of all liabilities. The truth is the postings were made possible only because it provides the platform for the subscribers to post the impugned comments. There being no two ways about it. In short as stated in the Application of the AG, the First Respondent facilitates the publication of the contemptuous comments by the third party subscribers.
[12] We understand that Malaysiakini is a limited company. The persons whose knowledge would be imputed to Malaysiakini would those entrusted with the exercise of the powers and duties of it. For the online news portal, there is a total of 25 staff with about 10 of them being editors and assistant editors. Steven Gan is the Editor-in-Chief of the editorial team, assisted by Mr R K Anand (Executive Director of the First Respondent) and Mr Ng Ling Fong (Managing Editor). The editors of each department report to Mr Ng Ling Fong and Mr R K Anand, who in turn report to the Second Respondent. As can be seen, the First Respondent has a structured, coordinated and well-organised and impressive editorial team and reporting structure. It is inconceivable that in such a structured system it had no notice of the impugned comments.
[13] However none of the editor had explained how these abusive comments escape the attention of the editors.In fact none of the 10 editors came forward to deny knowledge. The person charged with that particular responsibility should be the one who can deny and explain why he was not aware of the impugned comments before being alerted on 12.6.2020. The denial instead came from its director Premesh Chandran who was not involved in editing.
[14]The irresistible inference is that at least one of them had notice and knowledge of these comments. Therefore, it is our finding that the First Respondent cannot deny notice or knowledge of the existence of the contemptuous postings.
[15] Given the fact that the First Respondent’s news portal enjoys extensive readership and receives about 2000 comments per day, on top of the fact that it has editorial control over the contents posted in the comments section, the First Respondent must assume responsibility for taking the risk of facilitating a platform for such purpose. The sheer volume cannot be the basis for claiming lack of knowledge, to shirk from its responsibility.
[16] With the novel objective of encouraging public discourse on matters of public interest, Malaysiakini must at least ensure that the Malaysian public be exposed to balance discussions on the issues of public concern and not participate in demeaning and ridiculing the Institution of the Judiciary to undermine public confidence. As Lord Hobhouse observed with characteristic pungency in the case of Reynolds v Times Newspapers Limited and Others[1999] 4 All ER 609 at 657 that, “No public interest is served by publishing or communicating misinformation” and certainly not offensive comments.
[17] It would be expected for Malaysiakini to foresee the kind of comments attracted by the publication of the article on the acquittal of Musa Aman by the Court following the withdrawal of charges, coinciding with the unfortunate timing of the press release by the Chief Justice. Members of the editorial team, in particular, must have been aware of the kind of materials published and would be able to foresee the sort of 8comments that it would attract,given their experience in running Malaysiakini for over 20 years.
[18] The European Court of Human Right (EHtHR) had in the case of Delfi AS v. Estonia the facts of which bear semblance to the facts before us, when its third party subscribers posted vulgar,humiliating, defamatory statements which impair a person’s dignity. It was also found that similar system or safeguard employed by Malaysiakini was not sufficient to exonerate its liability.
[19] In Re: Prashant Bushan & Anor, Suo Motu Contempt Petition (Crl) No. 1 of 2020,a lawyer was found guilty of contempt for tweeting contemptuous remarks but not the Twitter account. The Twitter account was found not guilty because the nature of Twitter account is that there is no control whatsoever on what is posted. We do not agree that Malaysiakini is similar to Twitter Account. Malaysiakini has full control on what is publishable and what is not.
[20] The reliance by Malaysiakini that the Malaysian Communications and Multimedia Content Code (‘the Content Code’)shielded it from liability arose from wrong interpretation of the Code. The Code as well as the Multimedia law has an overarching objective to protect publication against offensive comments be published on multimedia platform
[21] Having considered all the submissions before us and for all the reasons elucidated above, we are firm in our view that the explanation of the First Respondent on lack of knowledge have failed to cast a reasonable doubt on the Applicant’s case. The First Respondent has also failed on a balance of probabilities, to rebut the presumption of publication on the ground that it has no knowledge of the impugned comments. The MCMC Content Code does not provide the First Respondent with any shield of defence.
[22] We find the charge for facilitating the publication of the impugned comments against the First Respondent proved. We therefore hold the First Respondent guilty of contempt of Court.The Second Respondent
[23]We have difficulty under the law (section 114A) to presume the Second Respondent Steven Gan as publisher. The Applicant has not established the three requirements of section 114A (1) against the Second Respondent. No fact or evidence was adduced that the name of the Second Respondent had appeared on Malaysiakini in such a way that can be attributed to facilitating the publication of the contemptuous comments.
[24] We are therefore not satisfied that a case of beyond reasonable doubt had been made out against the Second Respondent. The Second Respondent in our view is not guilty of contempt as alleged by the Applicant.
[25] We are quite certain that this case attracts worldwide attention and is under the watchful eyes of various news and media portals and organisations as well as social media platforms throughout the world. The media has demonstrated their agitation and concern that this case will shackle the media freedom and the chilling impact, this case may have that will eventually lead to a clampdown on freedom of the press.
[26] Nevertheless, this unfortunate incident should serve as a reminder to the general public that in expressing one’s view especially by making unwarranted and demeaning attacks on the judiciary in the exercise of the freedom of expression as guaranteed and protected by our Federal Constitution, it must be done within the bounds permissible by the law.And the law does not tolerate contempt of Court as it undermines the system of justice.
[27] The Malaysian public is not known to be rude, discourteous, disrespectful or ill-mannered. Let not the social media change this social landscape of our nation. Malaysiakini too owes that duty to ensure the preservation of this social behaviours in the virtual world. This in fact will go a long way to earn Malaysiakini as a responsible portal, for the purpose of public discourse.
[28] In this vein, we underscore the importance of maintaining public confidence in the Judiciary, the need to protect the dignity and integrity of the courts and the Judiciary as a whole, considering the nature of the office which is defenceless to criticism. As succinctly put by Lord Denning in Ex parte Blackburn (No. 2) (1968) 2 QB 150 that the nature of the judicial office does not allow replies to criticism. We cannot enter into public controversy and still less into politic. We have to rely on our conduct itself to be its own vindication.
19 FEBRUARY 2021
PRESS SUMMARY FOR THE DISSENTING JUDGMENT
IN THE FEDERAL COURT OF MALAYSIA
CIVIL APPEAL NO : 08(L)-4-06/2020 ( W )
PEGUAM NEGARA MALAYSIA v MKINI DOT COM SDN BHD AND ANOTHER
PRESS SUMMARY
1. This matter involves a novel point. The Respondents, namely Mkini Dot com Sdn Bhd and the Editor of Malaysiakini operate an online news portal, which allows for the publication of comments by third parties in response to online news articles. This is done by way of online forum postings. The issue that arises for consideration is whether the Respondents are liable in contempt for those third-party comments. The species of contempt in question is that known as ‘scandalising the court’. The Respondents unequivocally accept that the comments in question are contemptuous.
Salient Facts
2. I shal l not repeat the salient facts which are set out in the majority judgement and my full minority judgement. Suffice to repeat that as a consequence of the four contemptuous statements made by third party subscribers through the 1st Respondent, the AG commenced proceedings for contempt against M’kini Dotcom and its Editor, Steven Gan. The Respondents’ application to set aside the leave was unsuccessful and this Court determined that a prima facie case had been made out, relying primarily on section 114 A of the Evidence Act(E A) which allows for a presumption that the Respondents did indeed publish the impugned comments. But that presumption is a rebuttable one.
Setting Aside Application by the Respondents.
3. On 13 July 2020 we heard the substantive merits of the committal application. The Respondents filed further affidavits to explain the operating system for the news portal, specifically for the posting of third-party comments.
4. They utilise a software called “Talk” which allows for the screening of a comment against a list of banned and suspected words. However, two matters became clear:
(i ) Firstly, the software only allows for a comment administrator to approve or reject comments after publication. The comment with the suspected word would therefore be visible to readers;
ii) Secondly the software cannot detect more complex concepts involving sentences and words taken together, as the artificial intelligence is not advanced enough;
5. In summary neither the editors nor administrators would be aware of the content of third-party comments including the impugned comments until a suspected word is detected by Talk. There is no provision for the pre-monitoring of suspected words in third party comments save for banned words which can be caught by the software.
6. The primary m ode of dealing with offensive comments which fall into the suspected category is what is known as the ‘flag and take down’ policy. This is in keeping with the Malaysian Communications and Multimedia Code (‘Code’)under the Communications and Multimedia 3Ac t 1998(‘CMA’). But key to all this is the fact that these measures only come into play after the publication of the comments.
The Law
7. The law relating to the contempt of scandalizing the court is well stated in Arun Kasi’s case and I do not propose to add to it save to reiterate the statements made there. I have relied on the South African case of S v Mamabolo [2001] Z ACC 17; 2001 BCL R 449 (C C).
Issues:
8. The issues before us were:
(a) Whether the Respondents rebutted the presumption of publication under section 114 A of the EA?
(b) Whether ‘publication’ requires the element of intention and/or knowledge to be fulfilled; and
(c) Whether the Respondents had the requisite “intention to publish” for the purposes of scandalizing the court contempt?
Issue (a): Was the presumption under section 114 A EA rebutted?
9. I concluded that the Respondents had successfully rebutted the presumption for a number of reasons. Firstly, it is because the totality of the evidence points to the fact that at the time when the comments were first visible to readers, the Respondents were unaware of the existence and content of the same, until it was brought to their attention on 12 June 2020. They have given sworn evidence of this fact and there has been no challenge to this evidence given on oath.
Publication –Did the Respondents ‘publish’ the third party comments? Has section 114 A been rebutted?
10. This brings us to the heart of the case: If the Respondents had no knowledge of the existence and content of the third-party comments can it be said that they “published” those comments? And further can they be said to have “intended to publish” the impugned comments by reason of the fact that they are the hosts of an internet portal news site. With respect to the element of ‘publication’ I have in my judgement gone on to refer to case-law relating to defamation because that is the closest analogy that can be found. However, in doing so, I have cautioned myself that the offence of criminal contempt is in a considerably different category compared to the tort of defamation.
11. I concluded in relation to the issue of publication that an online content service provider such as Malaysiakini, operated by the 1st Respondent, is a “publisher” only if it does have knowledge of the existence and content of the comments posted by third parties. If it does not, then it cannot be said to have published those comments because knowledge is a necessary element of publication. In so concluding I considered case-law from the United Kingdom, The European Court of Human Rights, Hong Kong, New Zealand, Australia and India (see page 45, para 89 onwards).
12. I am fortified by the provisions of the Communications and Multimedia Act (‘CMA’) and the Malaysian Communications and Multimedia Code (‘Code’) within it. The latter prescribes that an internet intermediary such as Malaysiakini, is only affixed with liability as a publisher, from the point in time when it actually became aware of the existence and content of the third-party comments. To suggest that intermediaries such as the Respondents are bound to take steps to prevent such comments from appearing on the site, a means that apart from the filtering system the Respondents and all other intermediaries with a comments section including Facebook and Twitter users will have to provide supervision throughout the day and night. This is in light of the evidence from the Respondents that comments may arise at any time during the day or night and at any point of time in the future. That, to my mind, with respect, appears to be an untenable proposition. And that is why Parliament in its wisdom adopted the ‘flag and take down’ approach that enables the intermediaries to respond as soon as they acquire knowledge.
13. In the instant case the objectionable content was taken down within 12 minutes of M’kini being advised of the fact. That is an immediate response, demonstrating their intent not to allow such contemptuous material on their portal. Constructive Knowledge or the Ought to Have Known Test
14. In concluding that knowledge is a pre-requisite for publication in the context of contempt, I have rejected the “ought to have known” of the existence of such comments or a “constructive knowledge” test as being the applicable basis or test on which to determine whether the element of publication is made out . Under such a test, an online news portal is affixed with liability as soon as the third party impugned comment appears on the portal and it will be unable to avoid that consequence, even if it removes the impugned comment, because it will be caught by the test that it ought to have known and anticipated that comment before it could be posted.
15. It effectively makes an online intermediary liable for not taking steps to prevent unlawful comments being made. This is not in accord with the legislation enacted by Parliament. The objective of the CMA is that nothing in the Act should be construed as permitting the censorship of the Internet (see section 3(3). This is further fortified in the Code, which provides that responsibility for online content rests primarily with the content creator and also that an internet content hosting provider like the 1st Respondent is not required to block access by its users or subscribers to any material unless directed to do so by the Complaints Bureau; nor is it required to monitor the activities of its users and subscribe rs2.
16. When the internet content host is notified of a user providing prohibited content, and the host is able to identify such user, it has 2 working days to inform the user that the prohibited content must be removed within 24 hours failing which the host has the right to remove such content. Finally section 98(2 ) of the CMA stipulates that compliance with the Code is a defence against a prosecution or action or proceeding of any nature whether in court or otherwise regarding a matter dealt with in that code. It is significant that M’kini acted in compliance with the Code.
17. For these reasons I am satisfied that the 1st Respondent, M’kini Dot com Sdn Bhd was not a ‘publisher’ when the impugned comments first appeared on 9 June 2020, because it had no knowledge of the same. It became affixed with knowledge on 12 June 2020, after which the comments were taken down within 12 minutes.
18. The second Respondent, Steven Gan as the chief editor is further removed from having ‘published’ under section 114 A of the EA as it does not apply to him . Neither is he implicated in the factual matrix of the case.1 See section 4.1(b) of the Code 2See section11.1(c) and (d) of the Code 3See section 10.2 of the Code7
Intent to Publish, an Essential Element to establish Contempt, was Not Fulfilled
19. As I have concluded that neither of the Respondents ‘published’ the third-party comments, it follows that they could not possibly have possessed the requisite ‘intention to publish’ the impugned comments by third parties. Such ‘intention to publish’ is an essential element of scandalizing the court contempt (see Arun Kasi). The standard of proof, moreover, is beyond reasonable doubt. That standard is not met on the material before us .
Can Intent to Publish be inferred from the Surrounding Circumstances?
20. The majority judgment relies on the doctrine of constructive knowledge to adjudge the 2ndRespondent liable for contempt. They rely on the contention that both elements of ‘publication’ as well as an ‘intent to publish’ may be inferred from surrounding circumstances. Analogies to the doctrine of ‘wilful blindness’ and ‘constructive knowledge’ which feature in other areas of criminal law a reutilized to establish liability for contempt.
21. To my mind and with the greatest of respect, they have no application to contempt. This is because in the law of contempt, constructive knowledge or the fact that ‘you ought to have known’ cannot be applied against an online content provider who is not the author of the comments. It is after all the author who is the person who committed the primary offence. M’kini is not the primary perpetrator. So, while the concept of ‘you ought to have known’ may be applicable to the primary perpetrator it is neither sound nor sustainable in law to extend such an inference to a party once removed from the author or primary perpetrator . It becomes a fiction to maintain that M’kini knew of the existence of the comments and chose and intended to publish the same.
22. For these reasons I conclude that the Applicants have failed to establish beyond reasonable doubt that the Respondents possessed the requisite knowledge of the existence of the third-party comments and deliberately intended to publish those comments. The Respondents have, more over, apologized unreservedly for indirectly being involved in the airing of these contemptuous third-party comments. Therefore, they are not liable in contempt.
23. That having been said, contempt of court is a serious offence and all on line portals ought to be vigilant of, and act to prohibit any attempts to erode the confidence of the public in this august institution.
NALLINI PATHMANATHAN
Judge Federal Court of Malaysia
Note: This summary is merely to assist in understanding the judgment of the court. The full judgment is the only authoritative document.
In Malaysiakini decision, Federal Court acknowledges spotlight on free speech but reminds Malaysians to be polite online
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PUTRAJAYA, Feb 19 ― The Federal Court in its majority ruling today urged Malaysians to remain respectful even while online, while noting that news website Malaysiakini’s contempt of court case over readers’ comments has drawn global attention to freedom of expression in Malaysia.
Today, the Federal Court’s seven-member panel reached a split decision, with six of the judges deciding in a majority ruling that Malaysiakini was in contempt of court for facilitating five readers’ offensive comments against the judiciary by hosting it on the website’s comments section, with one dissenting judge.
Court of Appeal president Tan Sri Rohana Yusuf, when reading a summary of the majority ruling, said the Federal Court judges are certain that Malaysiakini’s case “attracts worldwide attention and is under the watchful eyes of various news and media portals and organisations as well as social media platforms throughout the world”.
“The media has demonstrated their agitation and concern that this case will shackle the media freedom and the chilling impact this case may have that will eventually lead to a clampdown on freedom of the press,” the judge said, while noting allegations that this case had “intimidated and threatened media independence” especially in relation to online news sites.
However, Rohana said that Malaysians should remember that the right to freedom of expression should be exercised within the limits of law, highlighting that contempt of court is not allowed under the law.
“Nevertheless, this unfortunate incident should serve as a reminder to the general public that in expressing one’s view especially by making unwarranted and demeaning attacks on the judiciary in the exercise of the freedom of expression as guaranteed and protected by our Federal Constitution, it must be done within the bounds permissible by the law.
“And the law does not tolerate contempt of court as it undermines the system of justice,” the judge added.
“The Malaysian public must use their discretion wisely especially when it comes to posting on the internet as it will remain in posterity in the virtual world,” she further said.
“The Malaysian public is not known to be rude, discourteous, disrespectful or ill-mannered. Let not the social media change this social landscape of our nation. Malaysiakini too owes that duty to ensure the preservation of this social behaviour in the virtual world,” the judge said, adding that this would go a long way to earn Malaysiakini a reputation as a responsible portal for the purpose of public discourse.
She also highlighted the importance of maintaining public confidence in the judiciary as well as the need to protect the judiciary’s dignity and integrity, as the nature of the courts is that they are “defenceless to criticism”.
The courts’ nature is that they are not able to reply to criticism, with Rohana explaining: “We cannot enter into public controversy and still less into politics. We have to rely on our conduct itself to be its own vindication.”
The five other judges who agreed with Rohana for the majority ruling are Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim, Datuk Seri Mohd Zawawi Salleh, Datuk Vernon Ong Lam Kiat and Datuk Abdul Rahman Sebli.
The Federal Court’s majority and minority decisions were delivered physically in a courtroom in Putrajaya today, with those present in the courtroom being lawyers for Malaysiakini and senior federal counsels from the Attorney General’s Chambers, as well as Malaysiakini CEO Premesh Chandran and Malaysiakini editor-in-chief Steven Gan.
Others present in the courtroom were lawyers holding watching brief, with Nizam Bashir appearing for the Bar Council and for the Human Rights Commission of Malaysia (Suhakam), while New Sin Yew attended on behalf of the International Federation of Journalists (IFJ) and the National Union of Journalists Peninsular Malaysia (NUJM) and Yusmadi Yusoff attended for Centre for Independent Journalism (CIJ) and Gerakan Media Merdeka (Geramm).
Following the Federal Court’s majority decision by six of the seven judges which found Malaysiakini to be in contempt of court, the British High Commissioner and acting Canadian High Commissioner jointly expressed their concern and stressed the importance of media freedom and freedom to discuss and debate, while the US embassy in Kuala Lumpur also expressed concern.
“Freedom of expression, including for members of the press and the general public, is fundamental for public discourse and the democratic principles that support accountability and good governance,” the US embassy said in a brief statement.
Civil society organisations such as NUJM, CIJ, Geramm, Amnesty International Malaysia, Article 19, Human Rights Watch and electoral watchdog Bersih 2.0 have also since issued statements on the decision.
On June 17, 2020, the Federal Court allowed the attorney general to start contempt of court proceedings against Malaysiakini’s operator Mkini Dot Com Sdn Bhd and Malaysiakini’s “Ketua Editor.”
The five comments were posted under a June 9 news report titled “CJ orders all courts to be fully operational from July 1”, with Malaysiakini having previously said that it was alerted at 12.45pm on June 12 about these comments when police contacted them to notify about investigations regarding these comments.
In court documents, Malaysiakini previously said it was not aware of the five offensive comments previously as no readers had reported these comments and as the comments did not carry any of the “suspected words” that Malaysiakini’s filter could detect, further noting that the editorial team had immediately reviewed the comments upon being alerted by the police and removed the comments at 12.57pm the same day.
June 9 also happened to be the day when the prosecution informed the High Court that it was dropping all 46 charges involving millions of dollars against former Sabah chief minister Tan Sri Musa Aman, which then resulted in the High Court acquitting him of all charges.
Of the 46 charges that Musa was acquitted of, the 30 counts of corruption related to his alleged receiving of US$50.1 million (RM213.5 million) from eight logging concessionaires as inducement to give timber concessions to 16 companies, while the 16 money-laundering charges related to his alleged receiving of proceeds from illegal activities amounting to US$37,845,491.60 and S$2.5 million.
The five offensive comments by the Malaysiakini readers had included criticism against the judiciary on the acquittal of Musa. Their comments were made despite the High Court’s decision to acquit Musa resulting from the prosecution’s withdrawal of charges.
Based on court documents, it is understood that Malaysiakini had previously on June 26 provided details on the names and email addresses of the five readers who made the comments to the police and Malaysian Communications and Multimedia Commission (MCMC) with MCMC having requested for such details, and that Malaysiakini has since permanently banned the subscribers who posted the five comments.
Malaysiakini previously said it had no intention to publish comments to scandalise the judiciary and that it had removed the comments within minutes of being alerted, with Malaysiakini and Gan previously also tendering their unreserved apology in court documents: “The respondents regret the tone and tenor of the comments and unreservedly apologises to this honourable court and the judiciary as a whole for having unwittingly allowed for their airing. Neither of us had any intention of scandalising or undermining the judiciary in any manner whatsoever.”
While acknowledging the apology by Malaysiakini for unknowingly allowing the comments which were automatically uploaded on the news website without prior manual filtering and also the cooperation shown by Malaysiakini to the police and courts, the Federal Court eventually decided on a RM500,000 fine on Malaysiakini.
Malaysiakini today launched a campaign to raise funds
through donations from the public, in order to be able to pay the
RM500,000 fine imposed by the Federal Court by the deadline next
Wednesday. - Malay Mail, 19/2/2021
Malaysiakini has to pay RM500,000 fine for contempt of court by Wednesday
PUTRAJAYA (Feb 19): Malaysiakini, which was found guilty by the Federal Court of contempt of court for comments posted by its readers that were deemed to have attacked the judiciary, has until Wednesday to pay a RM500,000 fine.
The fine was imposed by a seven-member apex court bench led by Court of Appeal President Tan Sri Rohana Yusuf, who said the bench took into account the written and oral apology that has been extended by Malaysiakini's chief executive officer Premesh Chandran and the fact that the respondents had cooperated with the police and the courts.
“Having said that, it is our public duty to bear in mind the seriousness of the contemptuous act today which will ultimately undermine the system of justice in this country.
“The impugned statements had gone both far and wide both locally and internationally and the contents published are spurious and reprehensible in nature and it also involves allegations of corruption (of the judiciary) which are all false and untrue.
“We are of the view that a fine in the sum of RM500,000 would be appropriate, so hereby order for the fine by the first respondent to be paid within three days from Monday,” she said in imposing the fine.
Earlier, she read the majority six-to-one judgement which found Mkini Dotcom Sdn Bhd, the operator of the news portal, guilty of contempt but freed chief editor Steven Gan of the charge.
Meanwhile, Gan in response expressed disappointment with the sentence owing to the fact that the Attorney-General's representatives had only requested RM200,000 while Malaysiakini's lawyers, led by Datuk Malik Imtiaz Sarwar, suggested RM20,000 to RM30,000.
“We are disappointed that with the development of a changing new media landscape, this will have a chilling impact on discussion of issues of public interests and is a body blow to our campaign to fight corruption.
“The CJ (Chief Justice Tun Tengku Maimun Tuan Mat) in her speech said the judiciary could not be blamed for the dropping of the charges. That is the background involved (with the readers' comments) as it involved the dropping of charges against individuals charged.
“She said the public prosecutor was responsible for dropping the charges. The readers were upset by the dropping of charges to individuals facing court today. The readers may have gone overboard and attacked the wrong target,” he added.
The situation now, he added, is that everyone has a megaphone and it is imperative that the public is illuminated and educated, instead of punishing media organisations.
“This is a hefty fine that has been put against us and is an attempt to punish but also to possibly shut us down. What crime that Malaysiakini committed to pay the fine when there are individuals charged with millions or billions in money laundering but walk free,” he said, adding they would ask their supporters and readers for support to raise money to pay the fine.
Gan added that today's decision will affect media organisations and social media, and is a chilling impact on freedom of expression.
“We will try our best to pay the fine. I was even prepared that there is a chance I may go for prison for this,” he added.
Premesh reiterated that this would not be the end of Malaysiakini.
“We would not reduce work in terms of reporting in what we do, and continue in bringing professionalism to journalism,” he added.
Malik told reporters on the sidelines that this case is not about journalists who are doing the write-up but third parties who are readers making comments.
“This is an important decision over how the press or any organisation
post third party comments. We have cited an Indian Supreme court case
where a lawyer tweeted a comment and contempt was moved against the
person and Twitter, and the court exonerated Twitter. But the apex court
ruled today this is distinguishable in facts,” he said.- The Edge Markets, 19/2/2021
5 Reader Comments Just Cost a News Website $124,000
A panel of judges found the online outlet, Malaysiakini, guilty of contempt of court for the comments about Malaysia’s judiciary.
BANGKOK — Like many online news outlets, the Malaysian news site Malaysiakini allows readers to post comments at the bottom of articles. That proved expensive on Friday, when a Malaysian court ruled that the news site was legally responsible for reader comments deemed insulting to the judiciary.
A seven-judge appeals court panel found Malaysiakini guilty of contempt of court and ordered it to pay a fine of nearly $124,000, more than double the amount sought by prosecutors, for five comments left by readers.
The news outlet’s co-founder and editor in chief, Steven Gan, who was acquitted of the same charge, said the hefty penalty appeared to be an attempt to drive Malaysiakini out of business.
“It will have a tremendous chilling impact on discussions of issues of public interest and it delivers a body blow to our continual campaign to fight corruption,” Mr. Gan said after the hearing.
For decades, much of the media in Malaysia has been allied with the government, but independent news outlets — mainly online — have emerged to provide critical coverage and give voice to the opposition. Supporters of Mr. Gan have said that he and Malaysiakini were being punished for the outlet’s diligent reporting.
The readers’ comments were posted on a story about the Malaysian judiciary, which closely guards its reputation. They were later removed from the article, but not quickly enough to avoid charges.
In their verdict, the judges concluded that Malaysiakini should have vetted the comments and refrained from posting those that constituted contempt of court.
The panel rejected defense arguments that Mr. Gan and the news outlet were not legally responsible for their readers’ comments and that prosecutors should have been required to prove that they intended to publish scandalous material.
The fine of 500,000 Malaysian ringgit was far more than the 200,000 ringgit, roughly $50,000, that prosecutors had sought. The defense had asked for a fine of no more than 30,000 ringgit, on the grounds that it was the first time that such a case had been brought against a news outlet.
Within four hours of the verdict, donors to a defense fund had contributed more than enough to cover the entire fine, according to Malaysiakini.
The site’s defenders had argued that a guilty verdict would have the effect of inhibiting freedom of speech in the country of 33 million, which in recent years has been racked by charges of high-level government corruption.
Amnesty International Malaysia said it was deeply alarmed by the verdict, calling it “a travesty of justice” and “a grave setback for freedom of expression in the country.”
“The use of contempt of court laws to censor online debate and silence independent media is yet another example of the shrinking space for people to express themselves freely in the country,” said the group’s executive director, Katrina Jorene Maliamauv.
The United States Embassy in Kuala Lumpur, the capital, also expressed concern about the ruling. “Freedom of expression, including for members of the press and the general public, is fundamental for public discourse and the democratic principles that support accountability and good government,” it said in a statement.
The case was brought in June by Malaysia’s attorney general, Idrus Harun. He was named to the post by Prime Minister Muhyiddin Yassin, who took power less than a year ago at the head of an unelected government.
Mr. Muhyiddin’s governing coalition includes the former prime minister Najib Razak, who is accused of siphoning billions of dollars from a government investment fund that he once controlled.
In one of Mr. Idrus’ first acts as attorney general, the government dropped money-laundering charges against Mr. Najib’s stepson Riza Aziz, a Hollywood producer, in a deal that critics said would let him keep $83 million of the quarter-billion in government funds he was accused of receiving.
Mr. Najib has been charged with more than 40 criminal counts and is now being tried on some of them. Malaysiakini, along with other news outlets, has been covering the scandal for years.
“I am terribly disappointed,” Mr. Gan said. “What crime has Malaysiakini committed that we are forced to pay 500,000 when there are individuals charged with abuse of power for millions and billions who are walking free?” - New York Times, 19/2/2021
COMMENT | Bar concerned about media freedom after federal court decision
COMMENT | While the Malaysian Bar respects the Federal Court’s decision on Feb 19, 2021 that found the online news portal Malaysiakini guilty of contempt of court, we express our reservations and concerns on the ramifications of this decision.
The Malaysian Bar takes the view that the Federal Court’s decision is not in consonance with the fast-changing media landscape in our country. It brings a chilling effect to the press freedom of online media organisations and civil society groups.
This decision will have long-term consequences on the use of social media unless there are strict screening mechanisms in place for each and every comment. Such platforms could be held in contempt because of their role as publishers and this will put them at unnecessary legal risk. Comment features are important for public discussions and they form a key part of the freedom of expression.
The decision will cast wide ramifications that will impute legal responsibility on all social media platform owners — individuals or companies that provide a facility for readers to post their comments. It will also cause such platforms to take precautionary measures, such as disabling their comments section to avoid any repercussions.
The majority decision of the Federal Court seems to have taken a route to imply that constructive knowledge is sufficient to prove publication in the context of contempt. The Malaysian Bar takes the view that this is a cause for concern because even if steps are taken to remove the comments, liability can still be attached to the news portals or social media owners.
The Malaysian Bar also notes that the fine of RM500,000 is exorbitant and excessive, and a lower amount would have been sufficient to demonstrate the court’s disapproval of Malaysiakini’s actions. The sentence handed down in the form of a hefty fine does not reflect the proportionality of the offence committed, coupled with the mitigating actions taken by the independent news portal.
The court ought to have considered exercising leniency in its sentencing as Malaysiakini had already offered its unreserved apologies and had removed the comments immediately upon being alerted. This was also its first time being cited for contempt, and coupled with the fact that since this was a Federal Court decision, Malaysiakini had no further legal recourse to appeal on the sentencing.
While we acknowledge that freedom of speech is a feature of paramount importance in a democratic nation, the public is reminded to refrain from abusing this right by writing nefarious and malicious comments online and in the media.
The Malaysian Bar reiterates its call for the codification of the law of contempt in order to provide a clear and unequivocal definition of concepts such as “scandalising the court” so that there will be greater certainty in this area of law.
SALIM BASHIR is president of the Malaysian Bar.- Malaysiakini, 20/2/2021
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