Malaysia: Court Finds News Site Guilty Of Contempt Over Readers’ Comments

By Hadi Azmi

Malaysia’s highest court on Friday found news website Malaysiakini guilty of contempt over readers’ online comments that criticized the judiciary, in a verdict which drew international concern and condemnation about the chilling effect it would have on media freedom and free speech.

The court acquitted Steven Gan, the editor-in-chief of the popular news website known for its feisty coverage of the country’s politics and government, but fined Malaysiakini 500,000 ringgit (U.S. $123,750) – a sum which it raised from online public donations within hours of the verdict.

In its ruling, the Federal Court of Malaysia found that Malaysiakini failed to prove it was not aware of readers’ comments criticizing the country’s courts in response to an article published on the news site in June 2020.

“We are firm in our view that the explanations of the First Respondent on lack of knowledge have failed to cast a reasonable doubt on the Applicant’s case,” Justice Rohana Yusof said in her verdict.

“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 judge said, referring to Malaysiakini.  

Attorney-General Idris Harun had filed contempt charges against Malaysiakini and Gan for five comments posted by readers under a Malaysiakini article about an order to courts issued by the Malaysian chief justice.

In his compliant, Harun alleged that the comments “threaten public confidence in the judiciary.”

“[The comments] clearly meant that the judiciary has committed wrongdoings, is involved in corruption, does not uphold justice and compromised its integrity,” the attorney-general had said in an affidavit filed in June.

Although it ruled against Malaysiakini, the Federal Court acquitted Gan, saying it was satisfied that the editor had no role in aiding readers to publish their “contemptuous comments.”

“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,” the judge said, referring to Gan.

Still, the court imposed a fine of 500,000 ringgit on Malaysiakini. The penalty was more than twice the amount the prosecution had sought, but the court didn’t give a reason for it. Malaysiakini managed to raise that amount within four hours of the verdict, after it solicited online donations in a message on social media.

For Malaysiakini CEO Premesh Chandran, that was a sign that Malaysians supported the publication.

“It shows all that is right and wrong in this country. That the rakyat [the people] are willing to step up and do their bit to make their voices heard and make the country better, and contribute to righting the wrongs,” Chandran said, according to a note on Malaysiakini’s website thanking those who donated.

Meanwhile, the U.S. Embassy in Kuala Lumpur, along with the British and Canadian high commissions, expressed concern about the verdict.

“We are concerned by the Federal Court’s decision today against Malaysiakini and the impact it will have on press freedom in Malaysia,” the American embassy said in a post-verdict statement.

“Media freedom is of fundamental importance to the security, prosperity and wellbeing of all societies. People must be allowed to discuss and debate issues freely,” the British and Canadian high commissions in Kuala Lumpur said in a joint statement on Friday.

‘Travesty of justice’

Gan said he was “terribly disappointed” with the verdict.

“What crime has Malaysiakini committed that we are forced to pay RM500,000 when there are individuals charged with abuse of power for millions and billions who are walking free?” Gan told reporters at the Federal Courthouse in Putrajaya.

The verdict “flies in the face of a fast-changing new media landscape in the country,” he said.

The journalist was referring to a section of law that, according to a local media watchdog, makes those who administer, operate or provide spaces for online community forums, liable for content published through their services.

“Use of this section … threatens freedom of expression online and presumes guilt rather than innocence of those publishing content online,” the Center for Independent Journalism (CIJ) said in a statement after the verdict, referring to Section 114A of the Evidence Act.

“The state’s decision to prosecute Malaysiakini and the court’s decision today sets precedents of further burdens to be placed on online media, spelling doom for media freedom in Malaysia.”

As it is, CIJ said, journalists and news portals were being investigated by the police and charged in court for their reporting, since Muhyiddin Yassin unelected government came to power last March.

“We foresee Malaysia becoming more authoritarian if the State continues to penalize and intimidate the media in this manner. We reiterate our previous stand on the need to repeal repressive laws that impact media freedom and freedom of expression – in this case, Section 114A of the Evidence Act.”

Media advocacy group Gerakan Media Merdeka said the verdict “would undermine news publishers’ business models at a time when the news industry is struggling to survive.”  

International rights watchdog Human Rights Watch also commented on the law, saying it had led to “a travesty of justice” in the Malaysiakini case.

“Holding an online publisher like Malaysiakini liable for reader comments forces them, and any other online media organization or platform that permits reader comments, to choose between banning such comments, or over-censoring to avoid liability,” Phil Robertson, deputy Asia director of HRW, said in a statement after the verdict.

“There is no doubt that the direct result of today’s decision will be a significant chilling of the atmosphere for freedom of speech in Malaysia. … The Malaysian Parliament should now enact laws to preclude third-party liability for content and/or amend the laws that currently permit such liability.”

Launched in 1999, Malaysiakini has an audience of about 2.5 million readers, according to its page on LinkedIn. The news website and Gan have also received awards for their coverage of news in Malaysia, including the Free Media Pioneer Award from the International Press Institute in 2001.

“It has, I believe, provided Malaysians with a different way of interpreting Malaysia’s politics,” Professor Zaharom Nain at Nottingham University’s Malaysia Campus, told BBC News.

“Beyond providing dissenting news, Malaysiakini has shown many Malaysians that there is more than one point of view, and that it is legitimate to question authority,” he added.