The Malaysian Federal Court decision holding an online news site responsible for reader comments contravenes international human rights standards and will chill free speech in Malaysia, an international rights watchdog has said.
On Feb. 19 news site Malaysiakini was found by the court in contempt over comments about the judiciary posted by readers, a ruling condemned by Human Rights Watch (HRW).
The Federal Court found Malaysiakini was fully responsible for publishing readers’ comments that were critical of the judiciary and fined the news portal 500,000 ringgit ($123,762). HRW said that this fine was more than double the amount sought by the attorney general.
The rights group said that the decision highlights the threat to free expression posed by section 114A of the Evidence Act, a provision passed in 2012 that creates a presumption that the host, administrator, or editor of the website on which content appears is liable for publishing that content.
The case, which the attorney general filed on June 15, 2020, stems from five reader comments posted on the Malaysiakini website on June 9, 2020. The comments, critical of the Malaysian judiciary, were posted under an article reprinting a news release issued by the chief justice of the Federal Court about the reopening of the Malaysian courts after they were temporarily shut due to the COVID-19 pandemic.
The landmark ruling comes on the heels of increasing concerns from rights groups over a crackdown on dissent under Prime Minister Muhyiddin Yassin. It could also influence how news sites and social media platforms such as Facebook and Twitter manage user comments in a country where traditional media is largely pro-establishment or linked to the state.
The ruling came after Malaysia’s attorney-general last year sought to cite Malaysiakini and its editor-in-chief Steven Gan for contempt over five comments posted by readers on its website that it said undermined public confidence in the judiciary.
“The impugned statements had gone far and wide… the content was spurious and reprehensible in nature and the content involved allegations of corruption which were unproven and untrue,” said judge Rohana Yusuf.
Malaysiakini and Gan had maintained that they could not be held responsible and that the offending comments had been immediately removed after they were contacted by police.
The court acquitted Gan of the charge.
As one of the few independent news outlets in the country, Malaysiakini has often attracted scrutiny from authorities. It has long provided a platform for the opposition and been critical of the establishment.
Gan said last month that in the two decades since he founded Malaysiakini, its journalists had been declared traitors, faced debilitating cyber-attacks, been kicked out of press conferences, arrested, and raided by the police.
Linda Lakhdhir, Asia legal advisor at HRW, said that this is a politically motivated case. “And the court’s punitive fine against one of Malaysia’s few independent news organizations will force them to choose between banning comments or expending scarce resources monitoring and blocking comments,” Lakhdhir said. “If they choose the latter, they will be compelled to over-censor out of fear of liability.”
After the hearing, Gan expressed disappointment with the court’s decision, which he said put a burden on news and technology companies to control comments posted by external parties.
“It will have a chilling effect on discussion of public issues in the country and delivers a body blow on our campaign to fight corruption in the country,” Gan told a news conference.
Last year authorities questioned Al Jazeera journalists and raided the broadcaster’s office amid a probe into a program they aired on the treatment of foreign workers. A foreign worker who spoke critically of Malaysia in the program was deported.
The government had denied that it was clamping down on media freedom.
The ruling may also have broader implications for how social media companies like Facebook and Twitter manage their sites, especially as the case involved comments by third parties, said Malaysiakini’s lawyer, Malik Imtiaz Sarwar.
“I would think it is safe to say that you could similarly take issue with postings or comments on Facebook or Twitter. But it’s still premature and I think we should wait for the judgments,” Malik said.
Facebook and Twitter declined to comment.
Malaysiakini launched a fundraiser, seeking public support for the penalty imposed by the court. It raised more than 500,000 ringgit in four hours.