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Malaysiakini found guilty of contempt, chief editor not

PUTRAJAYA (Feb 19): A seven-member Federal Court bench in a landmark majority six-to-one decision has found news portal Malaysiakini guilty of contempt, but not its chief editor.

The decision today would affect the running of news portals in accomodating its readers comments and may affect Facebook and Twitter comments as well.

The judiciary's number two, namely Court of Appeal president Tan Sri Rohana Yusuf found Malaysiakini liable for contempt beyond reasonable doubt.

Justice Rohana said having considered the defence of no knowledge and the rebuttals raised, they are satisfied with the facts and evidence before them that Malaysiakini failed to establish that it has no knowledge of the five readers' comments which are offending to the judiciary.

“We say so because in law knowledge can be inferred from surrounding facts.

“Ultimately, Malaysiakini is the owner of its website, publishes articles of public importance, and allows subscribers to post comments to generate discussions. It designs its online platform for such purpose and decides to filter usage of foul words and relies on all the three measures it has taken," she said.

In other words, Mkini Dotcom Sdn Bhd, the owner that runs Malaysiakini, designs and controls its online platform in the way it chooses.

“It has full control of what is publishable and what is not. In doing so, it must carry with it the risks that follow from allowing the way its platform operates. Malaysiakini cannot be heard to say that its filter system failed to filter offensive comments, when in fact it deliberately chooses to only filter foul language but not offensive substance," she said.

Safeguards provided by Malaysiakini failed

The Court of Appeal president said the three safeguards adopted by the portal proved to have failed and did not efficiently control or prevent offensive readers' comments from being published.

“The surrounding circumstances of the present case strongly suggest that the impugned comments were published without reservation and were only taken down upon being made aware of by the police.

"We cannot accept such failed measures as a complete defence. Malaysiakini cannot unjustifiably and irresponsibly shift the entire blame on its third party online subscribers while exonerating itself of all liabilities.

“The truth is the postings were made possible only because it provides the platform for the subscribers to post the impugned comments. There is no two ways about it. In short as stated in the Attorney General's application, the portal facilitates the publication of the contemptuous comments by the third party subscribers. 

"We found the charge (of contempt) has been made and found the plaintiff (the Attorney General) had proven the case against Mkini Dotcom Sdn Bhd but not against the chief editor (the second respondent, Steven Gan) as being the publisher in the case," she said.

Justice Rohana said Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim, Federal Court judges Datuk Seri Mohd Zawawi Mohd Salleh, Datuk Vernon Ong Lam Kiat and Datuk Abdul Rahman Sebli are in the majority.

Federal Court judge Justice Datuk P Nalini is in the minority.

Justice Nalini ruled that Malaysiakini can only be considered as a publisher if it does have knowledge of the existence and content of the comments posted by third parties.

“If it does not, then it cannot be said to have published those comments because knowledge is a necessary element of publication,” she said in her dissenting judgement.

Justice Rohana said while the court noted in its judgement that this case would grab worldwide attention, the court hopes this unfortunate incident will serve a lesson in expressing one's view, and for media portals and organisations as well as social media platforms throughout the world.

“The media has demonstrated their agitation and concern that this case will shackle the media freedom and the chilling impact this case may have that will eventually lead to a clampdown on freedom of the press.

“Nevertheless, this unfortunate incident should serve as a reminder to the general public that in expressing one’s view, especially by making unwarranted and demeaning attacks on the judiciary in the exercise of the freedom of expression as guaranteed and protected by our Federal Constitution, it must be done within the bounds permissible by the law.

“And the law does not tolerate contempt of court as it undermines the system of justice. The Malaysian public is not known to be rude, discourteous, disrespectful or ill-mannered. Let not the social media change this social landscape of our nation. Malaysiakini too owes that duty to ensure the preservation of this social behaviour in the virtual world. This in fact will go a long way to earn Malaysiakini as a responsible portal, for the purpose of public discourse,” she added.

Justice Rohana said the bench underscores the importance of maintaining public confidence in the judiciary, the need to protect the dignity and integrity of the courts and the judiciary as a whole, considering the nature of the office, which is defenceless to criticism.

She noted the freedom of speech but said one must act within the bounds permissible by the law.

The case concerns five readers' comments published on an article by Malaysiakini dated June 9 last year regarding the resumption of court operations on July 1 amid the movement curbs instituted to curtail the spread of Covid-19.

This is a landmark decision as for the first time in Malaysia, a news portal has been cited for contempt of court for readers comments.

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