On the 19th February 2021, the Federal Court held Malaysiakini guilty of contempt of court over comments posted by site users containing criticisms against the judiciary and the Chief Justice. The comments were posted under an article published by the news portal. Despite Malaysiakini removing said comments, complying with police investigations and issuing an apology, the Federal Court imposed a RM500,000 fine; more than twice the amount demanded by the prosecution.
The 6-1 ruling relied on Section 114A of the Evidence Act, presuming Malaysiakini the publisher of the contemptuous comments. While Malaysiakini contested that they had taken necessary safeguards against liability of third-party comments and claimed to have no knowledge of the contemptuous statements, the claim was dismissed as it was expected that Malaysiakini “ought to have known” and foreseen the offensive nature of the comments. FCJ Nallini Pathmanathan, delivering her dissent, believed Malaysiakini not guilty after they successfully refuted the presumption under Section 114A and found that they had adhered to the Communications and Multimedia Act and the Malaysian Communications and Multimedia Content Code.
While the Federal Court’s decision is duly respected, it poses concern as precedent now holds hosts liable for comments made by third-party subscribers despite not having direct involvement. Not only might the implication of needing 24/7 moderation discourage platforms from allowing free public dialogue, it also throws into doubt how the decision will affect social media commenting and freedom of speech and expression in the digital age.
It is the Society’s humble view that freedom of speech as enshrined in Article 10 of the Federal Constitution must be upheld at all times. The judiciary is far too esteemed an institution to be undermined by anonymous comments, and while we recognise that contempt of court is a restriction listed in Article 10 itself, we view holding hosts responsible for a third-party’s contempt as counterproductive towards freedom of the press and expression. UMLS would like to articulate that free speech should be certain to ensure that both our journalists and the public have unfettered access to information and have the liberty to express opinions within the scope of their rights.