COMMENT | Reconsider contempt proceedings against Malaysiakini
COMMENT | The attorney-general has recently obtained leave for contempt proceedings against Malaysiakini and its editor-in-chief Steven Gan in relation to random comments posted by readers in the comments section, in response to a news item published on June 9, 2020 entitled “CJ orders all courts to be fully operational from July 1”.
The content of that news item is non-controversial. The comments in question, as far as we can gather, are entirely unwarranted and indefensible.
Those comments, we understand, had been removed by Malaysiakini as soon as it was alerted to the same.
Allowing readers to post instant and unscrutinised comments is a “new normal” for the internet media, which societies all over the free world have come to both accept and expect; notwithstanding some unwelcome consequences arising from time to time as a result.
Such features and platforms find their rightful place and value in public discourse, in contemporary societies, as part of democratic space.
Editor's note: Following legal advice, Malaysiakini has disabled the comment feature for this article.
COMMENT | The attorney-general has recently obtained leave for contempt proceedings against Malaysiakini and its editor-in-chief Steven Gan in relation to random comments posted by readers in the comments section, in response to a news item published on June 9, 2020 entitled “CJ orders all courts to be fully operational from July 1”.
The content of that news item is non-controversial. The comments in question, as far as we can gather, are entirely unwarranted and indefensible.
Those comments, we understand, had been removed by Malaysiakini as soon as it was alerted to the same.
Allowing readers to post instant and unscrutinised comments is a “new normal” for the internet media, which societies all over the free world have come to both accept and expect; notwithstanding some unwelcome consequences arising from time to time as a result.
Such features and platforms find their rightful place and value in public discourse, in contemporary societies, as part of democratic space.
Scrutiny by the media agency of a particular posted comment occurs if and when a complaint about the impropriety of the comment is made or communicated to it.
This, we believe, is a responsible approach that the internet media all over the world adopt, except in authoritarian regimes.
Thus, our laws today must be able to accommodate this new normal and refrain from holding an internet-media agency or its editor culpable for its readers’ comments unless it intentionally retains the comments after a complaint is brought to its attention.
To do otherwise will have the unhelpful and counter-productive chilling effect of causing internet media agencies to disable all comments columns.
It will be analogous to closing all roads because accidents do happen from time to time, despite the best of rules being in place.
Secondly, the overarching principle when contemplating bringing contempt of court proceedings is to ensure that freedom of speech is not compromised.
Speaking about judges, Lord Denning aptly remarked, “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations.”
It is clear that it is only appropriate to resort to contempt proceedings where the administration of justice has been seriously undermined. It is unnecessary to use it as a sledgehammer to crack a nut.
The Federal Court in Rozali Ismail v Lim Pang Cheong [2012] 3 MLJ 458, at para [21], reiterates this:
“The jurisprudence for arming the court with the power to punish a contempt is best expounded by Brown J in Re HE Kingdon v SC Goho [1948] MLJ 17 as follows:
‘But the root principle on which this inherent power to punish for contempt is founded and the purpose for which it must be exercised, is not to vindicate the dignity of the individual judge or other judicial officer of a court or even of the court itself, but to prevent an undue interference with the administration of justice in the public interest.”
These principles are critical to a functioning democracy and should not be sacrificed.
The AG’s Chambers in their application for leave before the court relied on Section 114A of the Evidence Act 1950. This provision allows for the following presumptions:
(i) That those named as the owners, administrators and editors of a publication are deemed to have published the contents of that publication;
(ii) That a person registered with a network service provider as a subscriber, is the person who published any content that originates from usage of that registered network service;
(iii) That a person who has custody or control of any computer, is the person who published any content that originates from that computer, unless the contrary is proved.
The Bar and Civil Society have consistently opposed Section 114A as it is an unlawful reversal of the burden of proof, is oppressive and anti-democratic.
Its utility is spurious. It is a repugnant law that has no place in a true democracy.
We would urge the attorney-general to seriously reconsider proceeding with the contempt proceedings against Malaysiakini and its editor.
KUTHUBUL ZAMAN, YEO YANG POH, AMBIGA SREENEVASAN, RAGUNATH KESAVAN, LIM CHEE WEE, CHRISTOPHER LEONG AND STEVEN THIRU are former presidents of the Malaysian Bar.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
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