ONE thing is for certain: in the court of public opinion, the six Federal Court judges – one dissented – who found Malaysiakini guilty of contempt over readers’ comments, and fined it RM500,000, are extremely unpopular.

It was telling that when Malaysiakini appealed for donations, the amount was raised in less than five hours – a record for that amount in Malaysia. This clearly reflects public anger at a punishment that would have caused severe financial damage to the portal.

The Federal Court decision, a defining one for the conduct of not just Malaysiakini, but all online publications, including news portals, blogs and other comments across social media in Malaysia, whether originated by the publication or not, is regrettable, and demonstrates a lack of understanding of the media and the way it operates.

It shows overkill on the part of the judiciary to fine Malaysiakini RM500,000 when the prosecution asked for only RM200,000, especially when the portal has apologised for its readers’ comments and removed them as soon as it was made aware.

Instead, the judges relied on an amendment to the Evidence Act 1950 made in 2012 during Datuk Seri Najib Razak’s tenure as prime minister, which puts the onus on publications to prove they are not responsible for publishing something that appears on their websites, and held that Malaysiakini should have known about its readers’ posts.

The amendment was heavily criticised then.

Even so, considering that this is the first time such a case has come up before the apex court, not only was leniency called for, but also, a judgment that would lead to a liberal interpretation of the law, and something that would promote the notion of freedom of expression and speech as embodied in the constitution.

Thus, despite being exonerated of a personal charge of contempt of court, Malaysiakini editor-in-chief Steven Gan’s first words after the sentence were those of despair: “…it’s an attempt to not just punish us, but to shut us down… I am terribly disappointed; what crime has Malaysiakini committed that we have been forced to pay a fine of RM500,000, when there are individuals who have been charged with money laundering involving millions, if not billions, of ringgit, (who) walk free? It is definitely unfair.”

That is a sentiment that resonates with lots of Malaysians, and was overwhelmingly reflected in the successful fundraising exercise. But public sentiment aside, was the judgment fair? Or, were the judges taking things too personally?

The judgment could have taken into account the need to keep channels of public criticism open and consider the new channels of social media, where there are instantaneous news and opinions.

Instead, it holds publishers responsible, with no allowance made for time factors and the alternative for comments to be flagged and then removed, as provided for in the Communications and Multimedia Act 1998. It puts the media under grave obligation, at severe penalties, as it turns out, to moderate all comments before publication.

In the case of Malaysiakini, that’s an onerous task – there are as many as 2,000 comments per day – and for small organisations, that means they have to disable the comment function, which is a part of most social media channels, until they have an opportunity to review it.

The judgment could have easily shifted the burden of responsibility directly on the perpetrator. Instead, it held that Malaysiakini did not convincingly prove that it had no knowledge of the posts.

“We are satisfied with the facts and evidence before us that Malaysiakini failed to establish that it has no knowledge (of the comments),” said the summary document for the majority decision.

This is the crux of the issue – no one contested that the contents were not contemptuous, because they falsely accused the judiciary of being responsible for dropping charges against the accused in some cases. That was the attorney-general’s decision.

The costs involved in moderating 2,000 comments daily are too high for Malaysiakini, which, despite its wide reach, is a low-cost operation. – AFP pic, February 23, 2021
The costs involved in moderating 2,000 comments daily are too high for Malaysiakini, which, despite its wide reach, is a low-cost operation. – AFP pic, February 23, 2021

To find Malaysiakini responsible, the Federal Court used the 2012 addition of Section 114A to the Evidence Act, which shifts the burden of proof of publication to Malaysiakini, which had to prove that it was not the publisher.

Here’s where the court does not understand the operations of a news portal. The comments are not moderated by Malaysiakini, which only removes comments when there are complaints – that is the operating procedure. Thus, it is entirely possible that no one who controls Malaysiakini’s editorial operations had knowledge of the posts, contrary to what the court found.

The dissenting judgment by Datuk Nallini Pathmanathan showed a better understanding of the filtering system and the full realisation that it works only after a comment is published.

Thus, she asked: “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? The first respondent is a ‘publisher’ only if it does have knowledge of the existence and content of the comments posted by third parties.”

Imagine the costs involved in moderating 2,000 comments daily. That will prove to be too much for a low-cost operation like Malaysiakini, which nevertheless has wide reach. The implication for all news portals is heavy, and will move Malaysian ones awa`y from the freedom given to those overseas.

And in a situation where judges sit in judgment against criticism of themselves, it is fair to ask if they were personally stung by such assertions, and therefore, imposed a fine exceeding the amount asked by the prosecution – RM200,000 – by 2.5 times, or RM500,000.

Perhaps, they should have taken to heart what Lord Tom Denning was quoted as having said in 1968: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us.

“We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the press or over broadcast, to make fair comment, even outspoken comment, on matters of public interest…we must rely on our own conduct itself to be its own vindication.”

It also needs to be said that the five originators of the comments were not punished. Couldn’t more effort have been put into tracking and finding them, and holding them responsible for the comments? As Gan said, Malaysiakini was fined for an offence it did not commit.

And finally, by actually prosecuting this case, the attorney-general put a lot more focus on it – otherwise, it would have been forgotten completely, as the comments were removed after police alerted Malaysiakini to them. The posts had been there for three days.

The overall effect on all news portals is a chilling one – the implication of the judgment is that any contemptuous statement anywhere in a publication, no matter how it comes about, can have a rather nasty effect on a portal’s operations.

Whether intended or not, that is the effect of that 6-1 majority decision by the Federal Court against Malaysiakini and the RM500,000 punishment it imposed. – The Vibes, February 23, 2021

P. Gunasegaram says even the court can make mistakes. He is editorial consultant of The Vibes and executive director of advocacy group Sekhar Institute