Conviction for Contempt Risks Forcing News Sites to Censor Online Activity
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October 7, 2021
An award-winning independent Malaysian news website, which writes about human rights abuses, press freedom and democracy, was convicted of contempt of court because of online comments by its readers criticizing the judiciary. The conviction is inconsistent with international human rights standards and will chill freedom of expression by forcing news websites to censor discussion or risk prosecution, a TrialWatch Fairness Report said today. The conviction should be overturned when the Malaysian Federal Court reviews the decision on October 12.
In June 2020, Malaysiakini, the news site, published an article about courts reopening after they had been closed due to COVID-19. That same day, a politician was acquitted of corruption charges. Although this was not mentioned in the Malaysiakini story, several readers posted comments criticizing the acquittal. These included: “Where is law and order in this country? Law of the Jungle? Better to defund the judiciary!” and “The crooks are being let out one by one in an expeditious manner and will run wild by going back to looting the country.”
Like many other sites, Malaysiakini relies on limited filtering software and readers flagging comments in order to identify content that should be removed. In this instance, Malaysiakini took down the posts critical of the judiciary within twelve minutes of being notified of them by the police. Despite this prompt action, Malaysiakini and its Editor-in-Chief, Steven Gan, were charged with contempt of court— an offense that has yet to be codified in legislation and therefore potentially encompasses a wide range of conduct. Following a trial monitored by the Clooney Foundation for Justice’s TrialWatch initiative, Malaysiakini was convicted and Mr. Gan was acquitted.
“The result of this decision is that news sites will either have to limit comments or act as an arm of the Malaysian authorities in deciding what’s acceptable and what’s not: either way, it’s the users’ right to freedom of expression that will suffer,” said media regulation expert Joan Barata, the TrialWatch expert on the case.
Malaysiakini has previously been harassed by the Malaysian authorities. In 2016, police initiated a criminal investigation into Malaysiakini’s financing because its activities were deemed “detrimental to parliamentary democracy.” More recently, the authorities brought Malaysiakini’s Editor-in-Chief in for questioning after he criticized the verdict in this case, and police summoned two of its journalists as part of an investigation into a series of articles covering the death of a detainee in custody.
In this case, Malaysia’s highest court found that whether or not the site actually knew about the comments, it was responsible for ‘publishing’ them. The court held that Malaysiakini could not “unjustifiably and irresponsibility shift the entire blame on its third party online subscribers, while exonerating itself of all liabilities” and said that failure to pursue this case could “ultimately bring chaos in the administration of justice.”
“By not requiring the prosecution to show that Malaysiakini actually knew about the allegedly offensive comments, the court made them liable for everything any commenter might say on their site,” added Mr. Barata.
Malaysiakini has asked the court to reconsider its decision. Because the conviction is inconsistent with international standards reflected in the Universal Declaration of Human Rights, CFJ calls on the Malaysian Federal Court to reverse its decision.
Malaysiakini was founded in 1999 by journalists frustrated by restrictions on mainstream print and TV news media in Malaysia. At the time, online outlets were less constrained. Malaysiakini was intended to be an online platform that would give Malaysians access to information they could not get from other sources. It has been recognized for its commitment to press freedom by the International Press Institute, Reporters Without Borders, the Committee to Protect Journalists, AsiaWeek, and Businessweek.
This case against Malaysiakini took place against the backdrop of a broader crackdown on freedom of expression in Malaysia. TrialWatch has also been monitoring the case of a blogger charged with ‘offensive communication’ for posts critical of the authorities. Similar to the case against Malaysiakini, the authorities alleged that her posts were “derogatory and nasty.” A TrialWatch report on the case found that her prosecution is inconsistent with international standards protecting the right to freedom of expression.
Malaysiakini’s articles receive up to 2,000 comments per day. Only registered users are allowed to comment and the site does not review them. It uses filtering software to screen out offensive words and otherwise relies on users to report problematic content, at which point the site takes such comments down if necessary.
The key issue in the case was whether Malaysiakini (rather than the users themselves) had published the critical comments. The Attorney General argued that the Court could rely on a provision of Malaysia’s Evidence Act that allows courts to ‘presume’ that site owners and administrators are responsible for material that appears on their site. Malaysiakini, on the other hand, argued that they had not ‘published’ the comments because they had established a system for dealing with potentially problematic posts and did not know about this specific material. The court agreed with the prosecution, asserting that Malaysiakini should not 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 the train.” It went on to find that Malaysiakini’s system was no defense because it did not “efficiently control or prevent offensive comments from being published.”
Malaysiakini also argued that their lack of knowledge of the comments meant they had not ‘intended’ to publish them. While the court’s reasoning on this point is somewhat unclear, it appears to have either concluded that intent could be inferred based on the “failure of [Malaysiakini’s] self-designed safeguards” or that the requirement of proving intent was also met by the application of Malaysia’s Evidence Act. The TrialWatch Fairness Report on the case concludes that this approach – including the court’s heavy reliance on the Evidence Act – undermined the right to be presumed innocent by relieving the prosecution of the obligation of proving that Malaysiakini had published the comments.
The Fairness Report also finds that the proceedings violated the right to freedom of expression because the prosecution of Malaysiakini for an offense carrying penalties of imprisonment was neither necessary nor proportionate.
Although decisions of the Federal Court cannot be appealed, it is possible to seek review of a decision. At Malaysiakini’s request, the Federal Court has scheduled a review hearing for October 12.
For the Fairness Report, please click here.
For the PDF of this statement, please click here.