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Why Malaysiakini’s contempt of court conviction could set a dangerous precedent

Malaysiakini operator Mkini Dot Com Sdn Bhd has been ordered by the Federal Court to pay a fine of RM500,000 for contempt of court, after allegedly facilitating readers’ comments against the judiciary in an article dated 9 June 2020 (“CJ orders all courts to be fully operational from July 1”). As reported by Malay Mail, the decision was made by a panel of seven judges—who found the publication guilty with a 6–1 majority decision.

The fine is required to be paid within three days from Monday, and Malaysiakini’s site is now mostly decked out in monochromatic colours in light of the decision. The publication is also looking for financial help from the public to pay off the fine—which is more than double that the prosecution recommended during the trial.

According to the president of the Court of Appeal, Tan Sri Rohana Yusuf, who delivered the decision:

“In meting out the sentence that shall be imposed, we first take into account the apology that has been extended by the respondent and the fact that the respondents had cooperated both with the police and the courts.

“Having said that, it is our public duty to bear in mind of the seriousness of the contemptuous act today which will ultimately undermine the system of justice in this country.”

Meanwhile, Editor-in-Chief Steven Gan was acquitted of the same charge. The decision against Malaysiakini cannot be appealed as the Federal Court is the apex court in the country.

A dangerous precedent?

When delivering the decision, Tan Sri Rohana Yusuf explained that the offending comments in question were “spurious and reprehensible”, while allegations of corruption were “false and untrue”. It’s particularly notable that the charge—and subsequent conviction—centre around five comments that were posted by readers (not the publication) in the comments section on Malaysiakini‘s article.

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Malaysiakini also argued that it was unaware of the comments as none of the remarks contained “suspected words” that would trigger the section’s filter. When the police made contact with management over the ensuing investigation, the editorial team “immediately” reviewed and deleted the comments on the same day.

In response to the contempt proceedings, the Malaysian Bar Council earlier released an official statement calling for more “clarity” on the law of contempt. In the release, the Bar stated that the law of contempt is designed to serve the public interest, and to prevent undue interference with the administration of justice. “There must be a balance between public interest and individual liberties”, the statement reads, and the power to punish for contempt is traditionally “exercised sparingly and only in exceptional cases”.

The law of contempt, for some context, is a common law concept—and is also seen in other commonwealth countries as a result. The Malaysian Bar also recommends that the “vague” concept be codified—so that there is a “clear and unequivocal definition” that can be referred to. Currently, the Bar Council is in the process of drafting a Contempt of Court Bill for the future.

“We were not punished for our journalism. We were punished for comments posted by our readers.”

– Steven Gan, Editor-in-Chief at Malaysiakini via Malaysiakini

It must be said that this decision has the potential to set a dangerous precedent. Online portals, and their posts, often receive hundreds, even thousands of comments around the clock. While the need for responsible moderation is clear, it is near-impossible to ensure that there are no offending comments from readers.

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Following this logic, does this also apply to comments made on Facebook posts? Would that only be relevant to business/media pages? Or would the fact that comments are hosted on Facebook’s servers be the differentiating factor here? More clarity is needed here, and consistency in this legal grey area will be key in moving forward for media organisations, citizens, and all stakeholders involved.

The contempt charge mainly pertains to remarks that “scandalised” the judiciary—and in this case, the actual offending remarks were made by readers, rather than the publication or its employees. Malaysiakini‘s lawyers argued that intent, known as the mens rea, could not be proven by the prosecution towards the respondent (the portal)—although this was ultimately a futile attempt.

The Attorney-General’s argument, on the other hand, was that the five comments in question insinuated that the judiciary “committed wrongdoings, is involved in corruption, does not uphold justice, and compromised its integrity”.