SINGAPORE – Malaysiakini, widely considered the most popular independent media portal in Malaysia, was deemed liable for contempt of court in connection with reader remarks posted in the comments section of an article, a ruling that observers see as the latest blow to freedom of the press in the Southeast Asian nation.
In a Federal Court judgment on Friday (February 19), the online publication was found to be fully responsible for publishing third-party comments that “undermined the system of justice in the country” in a six to one decision. Malaysiakini was fined 500,000 ringgit (US$123,762), more than double the 200,000 ringgit fine prosecutors had sought.
Delivering the majority decision, judge Rohana Yusuf said the comments “involved allegations of corruption which were unproven and untrue,” and that the court could not accept Malaysiakini’s contention that it is not liable for public postings given that it owns, designs and controls its online platform in the way that it chooses.
“I am terribly disappointed,” said Steven Gan, Malaysiakini’s editor-in-chief, following the court ruling. “I think the decision made against us is perhaps an attempt to not only punish us but shut us down. It will have a tremendous chilling impact on discussions of issues of public interest and delivers a body blow on our campaign to fight corruption.”
The case has attracted worldwide attention for the broader implications the decision by Malaysia’s highest court could have on media, news and technology companies, given how the ruling sets a precedent for such entities to be held legally responsible for comments posted by external parties.
“This will have a negative impact on all the news websites in Malaysia,” said James Chin, director of the University of Tasmania’s Asia Institute. “The direct consequence will be that many news sites either will have to hire moderators to go through every comment or they will have to shut off their comments section. Otherwise, they will be held liable.”
Attorney-General Idrus Harun filed an application last June to cite Malaysiakini and its editor-in-chief for contempt over five reader comments posted on its website that were critical of the judiciary and decisions by the public prosecutor to drop corruption charges against personalities such as graft-accused politician Musa Aman and others.
Gan, who was found not guilty of the same contempt charges, maintained that Malaysiakini could not be held responsible for the offending comments, which were immediately removed within minutes of being alerted by Malaysian police. He previously described the case as “harassment” by Prime Minister Muhyiddin Yassin’s government.
Media and rights groups have accused Muhyiddin’s Perikatan Nasional (PN) government of presiding over deteriorating press freedom conditions since coming to power last March, rolling back an atmosphere of greater pluralism and less self-censorship that took hold under the nearly two-year rule of the reformist Pakatan Harapan (PH) administration.
Malaysia moved up the World Press Freedom index compiled by Reporters Without Borders (RSF) during the PH administration. More recently, journalists and news portals have been investigated by the police and charged in court over their reporting. The PN government denies that it is clamping down on press freedom and dissenting voices.
“Media operations in Malaysia are more controlled and restricted now more than ever – all since the change of government last year,” said Centre for Independent Journalism (CIJ) executive director Wathshlah Naidu in a statement that expressed “deep alarm” over the Federal Court ruling and its implications for content liability.
“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,” she added. “We foresee Malaysia becoming more authoritarian if the state continues to penalize and intimidate the media in this manner.”
Naidu said that CIJ had previously raised concerns around the use and overreach of Section 114A of the Evidence Act, the law under which Malaysiakini was charged. The provision holds individuals who administer, operate or provide spaces for online forums, blogging and hosting services liable for third-party content published through their services.
“This is actually a worldwide trend, that the platform is now being held accountable for comments made by the users,” said academic Chin. “It was obvious that Malaysiakini would be found guilty. But people are very surprised by the quantum of the fine, which was actually more than what the prosecution asked for.”
Malaysiakini, launched in 1999 as the country’s first independent news portal, is today regarded as one of Asia’s most influential news sites. The publication has been ordered by the court to pay the 500,000 ringgit fine within three working days and has appealed to the public to raise the funds following its conviction, the first for contempt in its 21-year history.
At the time of publication, the news portal had already raised 552,321 ringgit ($136,608) and suspended its donation campaign within hours of its launch, a sign of broad public sympathy and solidarity with the outlet following statements of concern by civil society, politicians and foreign embassies after the court ruling.
Phil Robertson, Asia deputy director for Human Rights Watch (HRW), called the decision against Malaysiakini “a travesty of justice that clearly violates international legal standards for the protection of freedom of speech.” He said the ruling would force media organizations to censor or outright ban third-party comments to avoid liability.
“Regarding the fine levied against Malaysiakini, which significantly exceeded the amount requested by prosecutors, it’s clear both Malaysia’s government and courts are trying to ape Singapore’s tactics to attack independent media outlets, seeking to bankrupt Malaysiakini with an outrageously excessive financial penalty,” Robertson added.