The Centre for Independent Journalism has warned that the court ruling could set precedents of further burdens to be placed on online media, spelling doom for media freedom in Malaysia.
This statement was originally published on CIJ’s Facebook page on 19 February 2021.
The Centre for Independent Journalism (CIJ) is deeply alarmed over today’s Federal Court ruling that found news portal Malaysiakini guilty of contempt of court, and its implications for media freedom in Malaysia. Malaysiakini was also fined RM500,000, while its Editor-In-Chief, Steven Gan, was found not guilty of contempt of court.
The case revolved around third-party comments by Malaysiakini readers on one Malaysiakini story. Malaysiakini today was found to be guilty under Section 114A of the Evidence Act (Amendment) (No.2) 2012, which presumes Malaysiakini as the publisher of the impugned comments in question.
CIJ has, in the past, raised concerns over the overreach of Section 114A of the Evidence Act, especially when the law was first mooted. The law, among others, makes individuals and those who administer, operate or provide spaces for online community forums, blogging and hosting services, liable for content published through its services. Use of this section further threatens freedom of expression online and presumes guilt rather than innocence of those publishing content online. This presumption of guilt goes against a fundamental principle of justice – innocent until proven guilty – and disproportionately burdens the average person or entity who will have to defend themselves in court. The apex court’s decision today goes to reinforce the concerns we had previously raised around the use of Section 114A of the Evidence Act.
The decision today has multiple implications for our media, specifically online portals and the extent of their liabilities. Portals such as Malaysiakini will be held liable for third-party comments and thus required to ensure adequate safeguards are in place prior to publishing to ensure they are not held liable. Not only will this be resource-intensive to moderate the sheer volume of comments, but it will also be a form of censorship and curtailment of the readers’ freedom of expression.
The decision against Malaysiakini also raises the possibilities that online news portals may remove their respective comments sections to reduce the liability against third-party comments. This would mean that readers lose the opportunity to critique, form their own opinions and make dissenting or alternative positions, specifically on issues of public interest. This challenges our constitutionally-protected freedoms of expression and speech, which underpins and facilitates public participation and a healthy democracy.
The State’s decision to prosecute Malaysiakini and the court’s decision today sets precedents of further burdens to be placed on online media, spelling doom for media freedom in Malaysia. Already we are seeing journalists and news portals being investigated by the police and charged in court over their reporting. Media operations in Malaysia are more controlled and restricted now more than ever – all since the change of government last year. We foresee Malaysia becoming more authoritarian if the State continues to penalise and intimidate the media in this manner. We reiterate our previous stand on the need to repeal repressive laws that impact media freedom and freedom of expression – in this case, Section 114A of the Evidence Act.
As a media watchdog, we stand in solidarity with Malaysiakini and strongly condemn efforts by the State to intimidate and threaten media freedom and independence.
Ms. Wathshlah G. Naidu
CIJ Executive Director
