Amnesty International Malaysia is deeply alarmed by the conviction and fine against online news outlet Malaysiakini for contempt of court over comments made by readers on its online platform. The Federal Court decision is a travesty of justice that will have a chilling effect on media freedom and the right to freedom of expression in Malaysia.
“The conviction and RM500,000 fine is a grave setback for freedom of expression in the country. The use of contempt of court laws to censor online debate and silence independent media is yet another example of the shrinking space for people to express themselves freely in the country,” Katrina Jorene Maliamauv, executive director of Amnesty International Malaysia, said.
“This decision runs counter to Article 10 of the Constitution that guarantees the right to freedom of expression. The government must cease targeting independent media outlets like Malaysiakini, which has continuously faced harassment and intimidation from authorities since its founding over 20 years ago.
Malaysiakini’s conviction for contempt of court was enabled by Section 114A of the Evidence Act, which places a presumption of responsibility on the publisher for all content on their publication, including reader’s comments.
Civil society and media practitioners protested this amendment when the government under Prime Minister Najib Razak proposed it in 2012, but the government claimed the law would not be abused. The 19 February decision proves otherwise.
“This policing of comments via criminal prosecution is unprecedented and grants the government unfettered powers to censor online discussion and dissent,” said Katrina. “The government must repeal Section 114A of the Evidence Act, whose reversal of the burden of proof violates basic principles of justice.
“The conviction of Malaysiakini reflects the state of decline in freedom of expression in Malaysia over the past year. Amnesty International Malaysia calls on the government to restore respect for, and ensure the protection of, the right to freedom of expression.”
On 19 February 2021, the Federal Court found Malaysiakini guilty of contempt of court, but cleared its editor-in-chief, Steven Gan, of the same charge, over comments made by readers on its online platform.
Government prosecutors had asked for a fine of RM200,000 and Malaysiakini’s counsel asked for a maximum of RM30,000, but the Federal Court increased the penalty to RM500,000, which Malaysiakini has to settle the week after.
The case began in June 2020, when the government filed an application to cite Malaysiakini for contempt of court over five readers’ comments in response to an article, “CJ orders all courts to be fully operational from July 1.”
Malaysiakini administrators had already removed the comments, following a request from the police.
The case was heard at the Federal Court. The prosecution cited Section 114A of the Evidence Act to argue that the news portal was responsible for facilitating the offending comments.
Section 114A places the burden of proof on anyone facilitating the publication of any content online. This means content considered to violate any law is presumed to belong to the site’s publisher, the person under whom the internet access is registered, or the person with custody of the device from which it was published.
While intermediaries do have a responsibility to respect human rights, this does not mean they should be held liable for what others say.
The UN special rapporteur on freedom of expression has stated that holding intermediaries such as media platforms liable for content by users leads to “self-protective and overbroad private self-censorship” without transparency and due process of law. The UN independent expert has also called for the protection of intermediaries to ensure full protection of the right to freedom of expression. – Amnesty International Malaysia