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Contributed by Janet Chai
Pei Ying & H R Dipendra
 KUALA LUMPUR: On July 8, 2008, the Freedom of Expression and the Media Defence
Working Group of the Bar Council's Human Rights Committee together with the
Media Legal Defense Initiative and the Centre for Independence of Journalism (CIJ)
jointly organized a Media Defence Lawyers Training Programme at the Bar Council
Auditorium. This unique full day workshop on media law targeted those who
already have a working experience of libel and other laws affecting the media.
The training was aimed to provide guidance in bringing a holistic and practical
approach when defending the right of freedom of expression of the media, and was
to include discussion on the latest developments in libel law, protection of a
journalist's sources, and sharing of strategic tips on challenges currently
facing some media owners, journalists and bloggers in Malaysia.
The training programme was headed by eminent speakers – Mark Stephens, who was
recently listed by the Times newspaper as one of the United Kingdom’s 100 most
influential lawyers, and who is very often referred to as Mr. “Media Lawyer”;
Robert Balin, an attorney who specializes in all aspects of media litigation and
is Co-Chair of the Media Law Practice Group with Davis, Wright & Tremaine in New
York; Charles Glasser, a former journalist turned lawyer and is the Global Media
Counsel for Bloomberg News, whose forte involves training members of the media
on how to exercise their freedom to speak responsibly; and lastly, Malik Imtiaz
Sarwar member of the Malaysian Bar and President of HAKAM.
The training started with the Chair of the Freedom of Expression and the Media
Defence Working Group, HR Dipendra, explaining the concept of media defence and
the need to promote the freedom on the flow of information to people. Underlying
this concept was the importance and need for the flow of information to be free
from obstacles, external pressures, and hence media should not be controlled.
Freedom on the flow of information is also enshrined in Article 10 of our
Federal Constitution. However with this freedom must come responsibility but
such responsibility should not be a state intervening event but rather a
collective responsibility by all stakeholders involved in media defense.
Robert Balin and Mark Stephens then started an interactive session on Issues in
Media Defence, with visuals to highlight the basic difficulty faced by the media
– whether statements released would be considered an opinion or fact – the
starting point in a libel suit. Mark highlighted the importance of freedom of
expression in every nation which places economic prosperity as its top priority
– there is a direct correlation between freedom of expression, which entails
transparency and accountability, and economic prosperity in every nation.
On the interpretation of Article 10, as there are limited case law in Malaysia,
Mark opined that one should look to customary international law. Customary
international law on the freedom of expression, he shared, arguably is part of
our domestic law: indirectly in the form of bilateral agreements between nations
and resolutions of adoption of such law; and directly in the sense that freedom
of expression are considered basic law and have minimum standards that are
applied throughout the world; hence, when faced with limited case law on the
interpretation, one should look outwards to customary international law and
argue its applicability to domestic law.
Other issues discussed were the restrictions on freedom of expression faced by
media in the form of licensing permit, amount of damages awarded in a libel suit
(in the early part of this century, Malaysia was known to have awarded
exorbitant damages amounting to millions of dollars in libel suits; fortunately,
it can be safely said that this is no longer the case as such award of damages
have seen disapproval in the Court of Appeal and Federal Court) and media
insurance. Important as it is, the right to freedom of expression should also
not be abused. Mark highlighted the importance of responsible journalism – steps
should be taken to verify the information, status of the information,
incorporate the two sides to a story, tone of the article - the list is not
exhaustive, and any other factors and its relevance would vary from case to
case.
Malik Imtiaz then presented his talk on How not to go to Jail by first giving an
outline on the media situation in Malaysia – methods on dissemination of
information, mainstream media, alternative media, public space, and extent of
freedom of expression. The current tension in Malaysia can be summarized as
follows: mainstream media vs. alternative media; who defines the truth. Malik
highlighted that the media group should be aware of the laws that pose
restrictions on the freedom of speech in the country: Sedition Act, Printing
Presses and Publications Act, Penal Code and Internal Security Act. In addition
to the aforementioned statutes, the media should also be aware of the existing
system in the country. Malik also stressed that journalists and bloggers should
write responsibly, going back to the point of responsible journalism that Mark
had highlighted earlier. Malik’s talk ended with discussions on the Lingam
videotape fiasco, rule of law and the institutions, and Patrick Saw’s t-shirts.
The group then proceeded to lunch, which was served at the President’s Room,
Royal Selangor Club. During the 4 course lunch, the group was entertained by the
last speaker of the day, Charles Glasser. Charles’ topic was on Working as Media
Counsel in the 21st Century: A New Paradigm. Charles started with explaining his
concept of the New Paradigm with an analogy of paradigm shifts on technology in
Asia (emerging markets) – that in Asia, there was technology “leapfrogs”; ‘the
West followed incremental steps in infrastructural development: from telegraph
over copper wire, to voice over copper wire, to data over copper wire, to voice
and data over fiber optic cables, now to wireless broadband’; ‘by contrast,
India went from fragile copper wire directly to wireless broadband’. Charles
shared that lawyers should apply this “leapfrogs” paradigm shift to media law in
Asia, in that essentially, it should first be recognized that the old model of
‘print whatever you want and we’ll figure out a legal defense’ has failed as
this old model produced stories that has resulted in litigation and diminution
of the publication’s brand and integrity, which are keystones to readership and
business (media) success. Charles shared his views on the core values and
practices that are required in this new paradigm, which are applicable to
lawyers advising their media clientele and the media group, and are as follows:
encouraging quality journalism as ‘it is better to be second and right than
first and wrong’; fairness; transparency; clarity and precision of language;
ethical resources – ‘hidden cameras and recorders should be the last, not the
first method of reporting’; serve the public interest – ‘the public interest is
served when those with something at stake have the opportunity to learn facts
that affect their health, safety, financial or physical security’.
After Charles’ talk and lunch, the group returned to the Bar Council Auditorium
where they were split into 2 groups to work on a problem question. Discussions
ensued in both groups to apply all that was learnt earlier to the problem
question.
The training programme ended at 4.30pm with tokens of appreciation handed out to
Mark, Robert, Charles as well as Peter Noorlander from the Media Legal Defense
Initiative.
The Media Legal Defense training programme was preceded by a welcome dinner
reception of its eminent speakers and participants, which included lawyers and
journalists, at Sassorosso Lorong Yap Kwan Seng on the evening of 7 July 2008.
The welcome dinner reception was graced by the attendance of the President of
the Malaysian Bar, Dato’ Ambiga Sreenevasan, Vice President Ragunath Kesavan,
Chair of Human Rights Committee Edmund Bon and senior members of the Malaysian
Bar.
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