Lawyers for Liberty (LFL) refers to Prime Minister Anwar Ibrahim’s response to Najib Razak, who requested through his lawyers that the Netflix documentary Man on the Run be taken down.
The prime minister said “we will consider it”.
LFL is surprised by the PM’s response, as well as Communications Minister Fahmi Fadzil’s earlier comment that “if there is a request, we will go through that process”.
The government has no such power to consider or allow such an application by Najib as it would be an unlawful exercise of power.
Netflix as an internet streaming service is an over-the-top (OTT) platform and as such is not subjected to the Communications and Multimedia Act 1998 (CMA).
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Removal of the documentary would amount to censorship, which is contrary to Section 3(3), which states that the CMA does not permit censorship of the internet. This exception is clear and unambiguous.
In addition, removal of the documentary by the government would be contrary to the right to freedom of expression contained in Article 10(1)(a) of the Federal Constitution.
Thus, the government has no power to direct Netflix to take down the documentary and neither can the Ministry of Communications take it down themselves.
It would be illegal and an abuse of power for the government to interfere in the dispute between Najib and Netflix and arbitrarily remove this documentary.
Should Najib be aggrieved by the contents of the documentary, which he claims is “sub judice” and prejudicial to his ongoing trial, then he must instruct his lawyers to file the necessary application in court.
Whether any material or publication is sub judice must be decided by the courts and not through extraordinary “requests” to the government.
Any remedy must be obtained by private legal action that is initiated by the person affected, which would be Najib in this case, and not by executive intervention. In short, like everyone else, Najib must seek relief from the courts.
Further, should the government approve the request and have the documentary removed from Netflix, they would be seen to have used their powers to accede to a request by an influential member of it Umno political ally, which perception is anathema to good governance.
The government must remember that Netflix is an international business entity streaming content worldwide. For the government to interfere with their operations without any resort to the courts would damage Malaysia’s standing as a place to do business.
The PM should have made it clear from the outset that the government could not and will not interfere in this dispute. Is he not being properly advised?
Hence, LFL urges the government to make it clear it will not arbitrarily interfere in this matter and that it will leave it to the jurisdiction of the courts. The government must not act beyond the ambit of its legal powers or entertain a request that is contrary to the law. – LFL
Zaid Malek is director of Lawyers for Liberty