Contempt ruling on news portal eye-opener as free speech, morality collide

It is about time to improve monitoring and put a clear clause and guideline for comments, says expert

by RAHIMI YUNUS / Pic by RAZAK GHAZALI

THE guilty verdict on the contempt of court over readers’ comments against news portal Malaysiakini is an eye-opener for both media organisations and the public, as the ruling tests the country’s speech and press freedom.

Universiti Teknologi Mara deputy dean of academic affairs (Faculty of Communications and Media Studies) Dr Wan Hartini Wan Zainodin said both parties have to play their role in regulating what is being written and published to prevent any contemptuous act.

Granted, she said, it would be unfair to attach the liabilities solely to media organisations, while individuals who left the comments got off scot-free.

“These things need regulation. It is unfair to enforce it to media outlets alone without holding the individuals responsible.

“When comments are closed, it is accused of being biased and a one-way communication. But it is very hard to control comments. A comprehensive approach is needed, so the enforcement can be seen as representing the interests of various parties,” Wan Hartini told The Malaysian Reserve.

For the media, she said sensationalism and sensitivity are two different things that must be distinguished, in which when they are not well-observed could compromise journalistic ethics and best practices.

Meanwhile, she said there is no absolute freedom and readers must have a sense of responsibility to leave comments with discretion.

“It is about time to improve monitoring and put a clear clause and guideline for comments.

“Readers must also ensure to comment with substance, with the implications in mind,” Wan Hartini said.

Last Friday, Mkini Dotcom Sdn Bhd, the company that runs Malaysiakini, was found guilty of contempt of court in a six-to-one decision over the publication of readers’ comments deemed to have offended the judiciary.

The comments were made to an article entitled “CJ orders all courts to be fully operational from July 1”, which was published on June 9, 2020.

The apex court, however, found the news portal’s editor-in-chief Steven Gan (picture), the second respondent, not liable for contempt and thus acquitted.

Court of Appeal president Tan Sri Rohana Yusuf; Chief Judge of Malaya Tan Sri Azahar Mohamed; Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim; and Federal Court judges Datuk Seri Mohd Zawawi Salleh, Datuk Vernon Ong Lam Kiat, and Datuk Abdul Rahman Sebli formed the majority ruling, while Federal Court judge Datuk Nallini Pathmanathan dissented.

“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.

“Though we remained perplexed how these comments even passed its filter, looking at the language of the impugned comments,” Rohana said, according to a press summary.

“The three safeguards adopted by the first respondent proved to have failed and do not efficiently control or prevent offensive 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,” Rohana said.

She said none of the editors had explained how these abusive comments escaped the attention of the editors and in fact, none of the 10 editors came forward to deny knowledge before being alerted on June 12, 2020.

The denial instead came from its director Premesh Chandran who was not involved in editing.

Rohana said the irresistible inference is that at least one of them had notice and knowledge of the comments, therefore the news portal cannot deny notice or knowledge of the comments.

“Given the fact that the first respondent news portal enjoys extensive readership and receives about 2,000 comments per day, on top of the fact that it has editorial control over the contents posted in the comments section, the first respondent must assume responsibility for taking the risk of facilitating a platform for such purpose.

“The sheer volume cannot be the basis for claiming lack of knowledge, to shirk from its responsibility.

“With the novel objective of encouraging public discourse on matters of public interest, Malaysiakini must at least ensure that the Malaysian public is exposed to balanced discussions on the issues of public concern, and not participate in demeaning and ridiculing the institution of the judiciary to undermine public confidence,” she said.

“Members of the editorial team, in particular, must have been aware of the kind of materials published and would be able to foresee the sort of comments that it would attract, given their experience in running Malaysiakini for over 20 years,” she added.

Rohana also said no fact or evidence was adduced that the name of the second respondent (Gan) had appeared on Malaysiakini in such a way that can be attributed to facilitating the publication of the contemptuous comments.

The court said the unfortunate incident should serve as a reminder to the general public that expressing one’s view must be done within the bounds permissible by the law and the law does not tolerate contempt of the court as it undermines the system of justice.

The court fined Malaysiakini for RM500,000, which was more than the RM200,000 sought by the prosecutors, to be paid by Wednesday.

Malaysiakini launched a crowdfunding exercise to raise RM500,000 and successfully achieved the target in under five hours last Friday.

In a joint statement, British High Commissioner to Malaysia Charles Hay and Acting Canadian High Commissioner Esther Van Nes expressed concerns about the verdict, saying media freedom is of fundamental importance to the security, prosperity and wellbeing of all societies.

Similarly, the US Embassy in Malaysia said freedom of expression — including for members of the press and the general public — is fundamental for public discourse and the democratic principles that support accountability and good governance.