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©The
Sun (Used by permission)
DEEMED one of BRITAIN’s top 100 lawyers, Mark Stephens, or "Mr Media Lawyer" as
he is known, is no stranger to Malaysian lAW and its implications on the media.
HE is head of media AT LONDON law firm Finers Stephens Innocent. his work
includes defamation, reporting restrictions, moral rights and copyright.
Stephens activelY lends his support to freedom of expression and the
establishment of a Freedom of Information Act in Malaysia, which he visits
several times a year. LLEW-ANN PHANG caught up with HIM at a workshop he
conducted, co-organised by the Bar Council and the Centre for Independent
Journalism.
You’re quite familiar with the situation in Malaysia and the Printing Presses
and Publications Act (PPPA) 1984. What are your thoughts?
 I’ve been concerned about the licensing of media in this country for some time.
Particularly because international law, which applies in Malaysia – customary
international law, that is – says that the government should not be able to use
licensing where the printing presses, journalists or media companies are
concerned for the purposes of restricting freedom of expression. So part of it
is about getting a plurality of media because it is important to get all shapes
and colours of opinion into the media. For active information to be given to
society, to enable people to make informed decisions, to ascertain whether
politicians are being as good as their word in relation to election promises
that they have made.
All of these things make it imperative that there is a full range of opinions.
Now, there will be extremes and we accept that, and most moderate people will
make up their own mind, having heard both extremes, somewhere about the middle.
But if you deny access to one side of the story, you skew people’s views in a
modern society. It doesn’t work, because what happens is that people migrate to
the blogs, the internet and to international media in order to fill that
perceived vacuum in their own society. People are not stupid, they know when
they’re not getting all the information.
In Malaysian society, I see people looking for that information not only in the
print media but also at newsstands, and I would much prefer to see people more
reliant on newspapers in Malaysia and not the internet which can be less
accountable in some ways for what it says. A newspaper is there, you can see it,
you know what it is, and its entire credibility stands behind the masthead,
whereas bloggers tend to be a little bit more fly-by-night.
So you’re more in favour of the traditional media (print) than online media?
I support the traditional media but only in a society which has an open and
diverse media – broadly owned. I mean we’ve seen the problem around the world
with Rupert Murdoch owning too much media, from television to print, in a number
of countries. We’ve seen it in other totalitarian regimes where all of the media
is owned by the state, for example. We’ve seen it in countries which attempt to
muzzle dissident views, like China or Saudi Arabia. Both of these are not
conducive to the development of a harmonious society. I personally believe that
one of the ways in which to deal with disharmony in society is to allow people
to vent their opinions, and if they’re allowed to give voice to their opinions,
then they will not resort to violence.
And indeed one of the reasons we have the European Convention on Human Rights is
that it was recognised by those who lived through the Second World War that if
there had been this plurality of media, if academics had had the freedom of
expression during the rise of Nazism, it would have probably been snuffed out
and we wouldn’t have had the war. So that’s why Europe decided to guarantee free
expression and the same holds throughout the world. That’s one of the reasons we
value freedom of expression so highly in countries of the world where there is a
guarantee of free speech.
Has the Malaysian media arrived at that stage of freedom of expression and
speech?
I don’t think so. For example the law on defamation here is based on the law
that we had in England in the 1950s. It’s sort of based on pre-independence. It
certainly pre-dates the new forms of media ... everything from tape recording
through to the internet. Defamation is not really catered for by the laws. I
mean judges have done their best to adapt the old laws, but every country in the
world, virtually, has recognised the need to reform the laws on defamation in
light of the modern media age.
As a consequence of the fact that we have a global media, that we live in a
global information society, it is critical that we see that the laws on
information and defamation in Malaysia are brought up to date and in harmony and
compliance with international law. The international treaty to which Malaysia is
a proud signatory should help iron out some of the tensions perceived by
observers of Malaysia and indeed Malaysia’s own media and lawyers.
So we need to review our laws to keep up with the times?
Yes, that’s right. I mean many of the laws – the law on sedition for example –
is an old colonial law of repression imposed by the colonial power, the British.
And it’s not appropriate in a modern society and most countries of the world
have thrown off the shackles of those kinds of law. And it’s important for
Malaysia to do the same.
Get rid of it altogether?
Yes … there’s no country in the world now ... no civilised country that believes
that anyone should go to jail for something they say and this is true
internationally. For example, France has removed the possibility of criminal
libel so that you can only be fined for what you say, and also many countries –
Sri Lanka, Japan, India – have revoked their old criminal libel laws. Britain
itself has given a parliamentary undertaking that the law, although still
technically in the statute books, will never be used – and it hasn’t been.
It is important to understand that the days when people faced criminal sanctions
for writing and speaking should be set to one side. No country in the world
practising international law – customary international law – believes or says
that journalists, newspapers or writers should be either jailed or stigmatised
with criminal sanctions for what they write, what they think, or what they
believe. You can be brought to account in a civil court. You can be brought to
apologise and correct errors and defamation. That is accepted and it is felt
that in modern society that is the appropriate response.
Perhaps it is helpful to explain what I mean by customary international law
because it’s not something which is taught in law schools. Judges, very often
because it’s not taught in law schools, also don’t have much experience in
dealing with it. There are three ways in which we make international laws. The
first is that countries make treaties with other countries – they can be
bilateral law or multilateral. So many members of the United Nations sign the
International Covenant on Civil and Political Rights and Article 19 of that
covenant guarantees freedom of expression.
Malaysia is a signatory to that covenant. We also have statements of law and
good practice issued by inter-governmental bodies like the World Bank and
develop-ment banks around the world. We get them from UN bodies as well, but
none of these statements are binding in national law unless they are adopted by
local legislation or in some way the government says "we will abide by this
particular standard".
Merely (setting) a standard to which they aspire to is insufficient. There are
some standards which become universal because so many people in so many
countries have agreed to a basic minimum standard. It crystallises into what we
call customary international law and there is now such a body of law. So many
countries have signed up to Article 19 or its equivalent in the European
Convention or the Inter-American Convention on Human Rights, that it becomes a
universal standard and applies to us because we are members of planet Earth, not
because we are members of a nation. And at that point, it becomes part of the
domestic law of every state and so customary international law is part of
Malaysian law, just as it is part of the law in the UK or Saudi Arabia.
Are we far behind in abiding by customary international law?
That’s a very good question! The answer is that it varies, depending on what
you’re looking at. There’s no doubt that Malaysia and Malaysian standards are
changing. We look at responsible journalism as a defence – the so called
Reynold’s Defence – which has been pleaded on a number of occasions in Malaysia.
It’s been accepted that decisions of the House of Lords on this subject are good
and I think rightly so, as is the case with many other Commonwealth countries.
I observe a pressure, a modernising influence within the Malaysian society to
encourage a more open approach to media, an ability to criticise public figures
more than has perhaps been customarily accepted as appropriate. And that, I
think, is partly cultural and partly a natural conservatism within society and
the legal profession, and every country has that same sort of conservatism. I
see that change occurring and a pressure for that change in Malaysia and I
welcome it. It’s a good thing for Malaysia and I think Malaysians would welcome
it.
So the pressure should be kept up?
Certainly. I think Malaysia will feel the pressure from outside – the
international community, particularly through the UN (which) will look to
Malaysia to ensure that it raises its game in terms of free expression. I expect
that the next time Malaysia is asked to make a country report to the UN on the
state of human rights, and particularly on freedom of expression in Malaysia, it
will be asked some fairly sharp and pointed questions about some of its older
and more anachronistic laws. I hope by the time they come to make that report,
they are in a position to proudly say we are at an international standard
acceptable to all.
Should the country provide for a Freedom of Information Act?
Yes, it has to. Again, this is something which is developing internationally. If
you’d asked people 50 years ago, they would have said certainly not, but it’s
been accepted that people undertake a better process of decision-making when
subject to scrutiny. There was an American judge – I think his name was (Supreme
Court Judge) Justice (Louis) Brandeis – who said "Sunlight is the best
disinfectant for corruption", and what he meant was that the media, being able
to access information, would be a disinfectant for corruption.
A Freedom of Information Act reassures the people that those who rule them are
not above reproach. It also allows them to see that the rights and interests of
the various groups are protected – for example, that the indigenous people are
not disadvantaged when compared to others. That sort of thing breeds openness
and transparency, and that incidentally leads to economic investment.
This is attested to by some research done by Oxford University a couple of years
ago which showed a direct correlation between a free press and inward investment
in society, and as a consequence of that, the World Bank now insists on
guarantees of freedom of expression. Not just in the law of the society in which
it is going to invest, but also on a practical basis how that is going to work.
So in simple terms such an Act allows the government to prove to the people
that it is not corrupt?
Yes, it gives people the reassurance, but it is not only about corruption, it is
wider than that. It’s about the fact that you can see that decisions are made
fairly in the interest of all and not just one section of society.
What are your thoughts on those who say there can be freedom but not absolute
freedom?
Well, I think that everyone (who) has a Freedom of Information Act has
exceptions for national security. But it’s how you define national security.
There are some things that are covered by national security which patently don’t
need to be. For example, in the UK, the formula for making nuclear weapons is a
classified Official Secret, and rightly it should be ... but the colour of the
carpet at the (security service) MI5 Headquarters is also covered as an Official
Secret because it covers up the embarrassment of the fool who chose an
impractical colour for an office. So those kinds of things are examples of where
mere embarrassment is something that one wants to protect or guard against. And
if someone is exposed for having made a fairly foolish decision, they are
encouraged not to make the same kind of foolish decision in the future and the
quality of decision-making improves ... you hope.
You have the Press Complaints Commission (PCC) in the UK. Is it effective?
It is not particularly effective. It’s worked reasonably well for the Royal
Family but outside that small circle it has not been particularly effective. It
can’t impose sanctions, it can’t impose fines, and in truth what happens is that
people who have a real grievance still go to court. It hasn’t ventilated the
real problem and I think that is partly because it is partly run by the media to
protect the media. It’s the fox guarding the chicken.
The fact that it has no sharp teeth means it is a lapdog not a watchdog, and as
a consequence, that model is not to be recommended. But if you have a body which
is effective, is able to resolve disputes and concerns for people who feel that
they have been traduced by the media, then it is important. And one of the best
ways is again a Right of Reply. We’re about to get a Right of Reply legislation
in the UK. It’s not something we’ve been used to. The European Union has had it
for many years and basically, it allows people who have been spoken of in poor
terms in the media to write in and give their own version of events, should they
wish.
The Right of Reply is an important matter for any Press Council to embrace. It
is important that members of the public understand that it is a Right of Reply,
it is the voice of the person who was written about in the newspapers and not
the voice of the newspaper, and so very often we put it in a separate section of
the newspaper to make it clear or add it as a link to the original article, if
it’s online, so that people understand there is a connecting feature but it’s
not something that is necessarily editorially endorsed by the paper. In the same
way, when you receive a letter to the editor, you understand that it is
someone’s opinion, not necessarily endorsed by the paper.
If the PCC is not an ideal model, and if Malaysia should want to set up a
watchdog to regulate the media and handle complaints, what would you recommend?
The concern one has with a regulator of this kind is that it has to be
independent – independent of government, independent of sectional interests,
independent of the media – because otherwise, what happens in many countries is
that the people appointed to run a Press Council are merely a placement for
government officials and they invariably back the government in nearly all of
their determination. That doesn’t do anyone any good because again, the public
are not stupid. They recognise when they’re having the wool pulled over their
eyes and it’s important that any Press Complaints Commission is truly
independent and is respected for its activities by those who want to use it to
resolve disputes.
What is your stand on media not being owned by say, political parties?
One of the problems that you have in every country is that most newspapers
(including the broadcast media) are state-owned. No doubt, some newspapers and
broadcast organisations are independent, but some of them tend to support one or
other of the political parties. And I think one of the problems that Malaysia
has is that it is perceived – rightly or wrongly – that the print media does not
represent the full spectrum of political opinions in the country, and as a
consequence, people tend to move towards the internet and bloggers for
alternative views.
There is a need – a crying need – for news organisations which are perceived to
be able to give an alternative perspective, so that people can actually take a
different view. It is difficult in an environment like Malaysia where, for
example, Malaysiakini – which perhaps could be perceived to have an alternative
view – has applied for a printing licence and no determination has yet been made
in respect of it.
This is a matter of enormous concern because an organisation that clearly wants
to introduce a different perspective hasn’t been allowed to because of the rules
on licensing. That won’t benefit Malaysiakini, the government or indeed
Malaysian society because people are left to read it online.
I feel that print journalism and broadcast journalism have higher standards than
online journalism. That’s not to criticise Malaysiakini, which has a good track
record, but merely to say that generally, it’s important for all sections of
community to be allowed to have their views represented.
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