The Sunday Star
by Roger Tan
Can press freedom be further advanced when readers are given carte blanche to post whatever they like including unlawful and defamatory comments under the protection of anonymity?
Tomorrow is World Press Freedom Day (WPFD).
It is a day which we Malaysians must remember and pay tribute to those news media and media practitioners for reporting the truth. Many have done so through their sheer courage and perseverance, by standing up for the independence of the press in this country, without fear or favour.
Needless to say, since Merdeka, some have also in their pursuits for a free press lost their own personal freedom in one way or another.
In fact, the WPFD came about after the United Nations Educational, Scientific and Cultural Organisation (UNESCO) held a seminar in Windhoek, Namibia on the promotion of an independent and pluralistic African Press some thirty years ago. It culminated in the adoption of the Windhoek declaration for the development of a free, independent and pluralistic press on May 3,1991. May 3 was then chosen as the day to mark WPFD by the UN General Assembly in 1993.
Regrettably, in the 2021 World Press Freedom Index released by Reporters Without Borders on April 17, Malaysia slipped to 119, falling 18 spots from the previous year.
On the other hand, if one is to go through the kind of comments being made by readers on the Malaysiakini online news portal, one may draw a conclusion, albeit erroneously, that there is absolute freedom of press in this country. Some of these comment sections, if not all, are accessible to the whole world, that is, to those who are not paid subscribers of the portal. Many of the commenters used a pseudonym when posting their comments.
But on February 18, Malaysiakini was fined half a million ringgit by the Federal Court for contempt of court over five readers’ comments criticising the judiciary.
When imposing the fine, Court of Appeal president Justice Rohana Yusuf, who chaired the seven-man panel said in the 6-1 majority decision, that the apex court was mindful that this case would attract world attention as the media had demonstrated their agitation and concern that this case would shackle media freedom and might eventually lead to a clampdown on freedom of the press.
The apex court ruled that this unfortunate incident should serve as a reminder to the general public that expressing one’s view, especially by making unwarranted and demeaning attacks on the judiciary at one’s whims and fancies, could be tantamount to scandalising the court.
“Whilst freedom of opinion and expression is guaranteed and protected by our Federal Constitution, it must be done within the bounds permissible by the law”, said Rohana.
She stressed on the importance of maintaining public confidence in the Judiciary and the need to protect the dignity and integrity of the Judiciary as a whole, considering the nature of the judicial office is one which is defenceless to criticism, that is, judges cannot reply to their criticism and neither can they enter public controversy.
Rohana also quoted Lord Denning who once said: “We must rely on our conduct itself to be its own vindication.”
If so, concerns have been expressed whether by punishing Malaysiakini, which is not the author of those impugned comments, the apex court has by its own conduct overreacted and this decision is one of the causes of Malaysia dropping by 18 spots in the 2021 World Press Freedom Index. It would have been more ameliorating if action was only taken against the commenters.
But Malaysiakini managed to raise the full amount of the fine within hours after the decision was pronounced. This swift public reaction could be interpreted as a public outcry over the decision.
Nevertheless, for Malaysians to appreciate the severity of the decision, they must acquaint themselves with the facts of the case, especially what are these five impugned comments published by Malaysiakini on June 9,2020. However, I will not give these commenters the publicity here. The impugned comments are contained in the written judgment which can be downloaded from the Judiciary website at www.kehakiman.gov.my.
In fact, Malaysiakini did admit that the comments are contemptuous, and it was not something which they would condone. I hasten to add here that there is no truth or justification whatsoever in these unwarranted attacks against the Chief Justice and the judiciary.
In his recently published book, former Attorney General, Tommy Thomas, who admitted having been much criticised for instituting contempt proceedings against a fellow lawyer and then asked for a custodial sentence wrote, “attributing corruption without proof and ascribing malice to judges was unacceptable”.
Interestingly, on August 31 last year, a senior Indian lawyer Prashant Bhushan was fined a symbolic one rupee, in default three months’ jail and barred from practising for three years, for contempt for posting two tweets in which he criticised the chief justice and the courts for their role in “how democracy has been destroyed in India” after Prime Minister Narendra Modi took office in 2014. He paid the fine.
Malaysians are, therefore, concerned why no action was not taken against the five commenters as they are the primary publishers and perpetrators. After all, Malaysiakini like Twitter, is only an intermediary. Media practitioners are worried that by going after intermediaries, this will eventually curtail public discourse on genuine public interest issues as they will have to restrict the use of such online platforms to protect themselves from any legal reprisals, indirectly having a negative effect on press freedom in Malaysia.
In their defence, Malaysiakini said they had complied with the Content Code made under the Communications and Multimedia Act, 1998 (Act 588). It added that section 3(3) of Act 588 states that nothing in Act 588 shall be construed as permitting any censorship of the Internet.
Malaysiakini also argued that it was not possible for them to moderate all comments due to sheer volume of about 2,000 comments being posted every day. Neither is their filter system or any available artificial intelligence capable of moderating such comments. In this case, Malaysiakini said the impugned comments were taken down in a matter of minutes upon being notified by the police.
The Federal Court disagreed, setting down the following principles and findings:
> that the failure of the Attorney General by not giving Malaysiakini first a formal notice to show cause as required under the rules of court is not fatal or prejudicial.
> that Malaysiakini has failed to rebut the presumption in section 114A of the Evidence Act, 1950 that Malaysiakini is the publisher of the impugned comments because it facilitates the platform for such publication. The majority decision held that to avoid liability, Malaysiakini must have a system in place that can detect and rapidly remove offensive comments. Malaysiakini, according to Rohana, cannot just wait to be alerted because such alert may never come.
“Sheer volume cannot be the basis for claiming lack of knowledge, to shirk from its responsibility”, said Rohana. She emphasised that Malaysiakini “cannot be allowed to turn their news portal into a runaway train, destroying anything and everything in its path, only because their riders are the ones creating such havoc albeit made possible by their train”.
> that freedom of speech under Article 10 of the Federal Constitution is not absolute. In other words, one party cannot insist on exercising this fundamental right and at the same time he violates the rights of others.
> that it agreed with the Supreme Court of India in respect of lawyer Prashant Bhushan case that the twitter platform is a totally different platform being a completely uncontrolled one.
> that European Court of Human Rights and the Court of Appeal of New South Wales too had ruled against website companies. In the latter case, it went further to state that the companies were the primary publishers and the commentators were the subsidiary publishers.
All in all, Rohana said, “Malaysiakini cannot be heard to say that its filter system failed to filter offensive comment when it deliberately chooses only to filter foul language but not offensive substance, though we remained perplexed how these comments even passed its filter, looking at the language of the impugned comments.”
In reply, the sole dissenting judge said to impute constructive knowledge on an online intermediary is “comparable to making an airline and airport operator complicit in the offence of drug trafficking, just because a certain drug mule chose to fly to an airport managed by a particular airport operator, using a specific airline”.
In my opinion, the five commenters should not be allowed to go scot-free. The Attorney General and the police should have first or just gone after them. I am sure Malaysiakini would have no difficulty in identifying them by extracting their payment details. It is legally unhealthy to resort the easy way out by relying on the presumption of section 114A and shifting the burden to the respondents. In so doing, the world has regarded the action on Malaysiakini as an attack on press freedom.
With all due respect to Malaysiakini, it cannot be gainsaid that sensationalised comments available to the public will draw more paid subscribers who want to read the actual news stories and post their comments. These comments should only be accessible by paid subscribers. Many news portals do that. But many too stay away from facilitating this platform for the risks involved. It is not fair to those who decided to opt out or be more responsible when facilitating such a platform. I cannot see how the cause of press freedom can be further advanced when readers are given carte blanche to post whatever they like, including unlawful and defamatory statements under the protection of anonymity.
Having said that, press freedom is indisputably essential to democracy. In the words of George Washington, “if freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter”.
Happy Press Freedom Day to journalists in Malaysia. We salute you if what you do is right.