While the Malaysian Bar respects the Federal Court’s decision today (19 February 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. Comments 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.
19 February 2021