MARCH 16 ― On February 19, 2021, the Malaysian Federal Court found Malaysiakini, an online news outlet, guilty for criminal contempt of court for five comments published by third parties on its website. This judgment has generated significant criticism from lawyers, civil society and media groups for restricting press freedom and freedom of expression online in Malaysia.

On June 9, 2020, Malaysiakini published an article on the reopening of Malaysian courts, in line with the recovery phase of the movement control order. In the public comments section of this article, subscribers left five comments critical of the independence of the judiciary and the Chief Justice. The comments were related to the acquittal by the High Court of former Sabah chief minister Tan Sri Musa Aman for corruption and money-laundering, after the prosecution withdrew the charges.

Key takeaways from the judgment

In Malaysia, article 126 of the Federal Constitution empowers the Federal Court, Court of Appeal and High Courts of Malaysia to "punish” incidents of contempt of court.

Malaysiakini was found guilty because it was presumed to be the publisher of the purportedly contemptuous comments left on its article. Under section 114A of the Evidence Act 1950, anyone who is depicted as "the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication” is presumed to have published the content, and thus potentially held liable.

Malaysiakini was found guilty because it was presumed to be the publisher of the purportedly contemptuous comments left on its article. — Reuters pic

Malaysiakini was unable to rebut this presumption. The Federal Court found that Malaysiakini should have foreseen the kind of comments that its article would have attracted. In other words, Malaysiakini had constructive knowledge because it should have known what kind of comments was likely to be posted. This is even if the editorial team had no actual knowledge of the comments until alerted by the police, following which the comments were promptly removed.

According to the court, Malaysiakini also did not take all the necessary steps to filter the offensive comments before they were published, as its system only filtered foul language but not allegedly "offensive” substance.

For this, Malaysiakini was fined RM500,000 (approximately US$122,700), despite the Attorney General recommending a RM200,000 fine (approximately US$49,090).

Incompatibility with international human rights law

The judgment reinforces how Malaysia’s contempt of court provisions are incompatible with human rights law and standards, especially the right to freedom of expression online. Malaysia is not a party to the International Covenant on Civil and Political Rights (ICCPR) which contains strict guarantees protecting this right. Indeed, the ICCPR has 171 State Parties, leaving Malaysia as one of just 22 UN Member States out of its ambit. However, freedom of expression is part of customary international law, incumbent on Malaysia.

The International Commission of Jurists (ICJ) has previously highlighted this incompatibility in its 2019 report on online freedom of expression in Southeast Asia. Malaysia’s contempt of court offence is a common law doctrine and not codified statutorily, and a clear definition of criminal contempt of court has not emerged within case law. The ICJ has highlighted the need for reform to ensure clarity in definition, consistency in procedural limits and sentencing limits pertaining to criminal contempt cases, in line with the principles of legality, necessity and proportionality.

Additionally, onerous fines and other sanctions are a disproportionate and unnecessary means of protecting the reputation of the courts. The UN Special Rapporteur on freedom of expression has urged States to refrain from imposing disproportionate sanctions, such as heavy fines or imprisonment, on Internet intermediaries, given their significant chilling effect on freedom of expression. The Manila Principles on Intermediary Liability, a set of guidelines for censorship and takedown laws, also made clear that intermediaries like Malaysiakini should be shielded from liability for third-party content.

The presumption of innocence is a fundamental rule of law principle. A corollary to this principle is that the burden of proof to establish guilt rests with the State in a criminal trial. The presumption of responsibility under section 114A of the Evidence Act reverses this burden of proof unto the defendant. This is therefore incompatible with right to fair trial as a general principle of law. The chairperson of the Constitutional Law Committee of the Malaysian Bar has pointed out section 114A is a "significant departure from the accepted notion where the prosecutor is required to prove all the central elements of an offence”. This is exacerbated by how the Malaysiakini judgment sets an unreasonably high standard of proof to rebut the presumption under section 114A, as defendants will need to prove they lacked constructive, instead of actual knowledge.

The above concerns emphasise the urgent need for these laws to be repealed or substantially amended. In this regard, the Malaysian Bar has recommended that section 114A of the Evidence Act be repealed, and for the law of contempt to be codified statutorily to provide clear and unequivocal definitions and guidance as to what really constitutes contempt. This is particularly important for concepts such as "scandalising the judiciary”, which are necessarily vulnerable to abusive application.

Domestic and regional implications of the case

Domestically, the Malaysiakini judgment creates a de facto requirement for all online news portals in Malaysia to monitor and filter user-generated comments for potentially offensive content even before they are published to avoid legal liability. This imposes an onerous burden on providers that will disincentivise them to perform their roles as providing a platform for the free flow of information and ideas, as they will have to engage in constant proactive monitoring or filtering content.

The judgment also raises questions about who else is considered a publisher and liable for third-party content. Are social media platforms like Facebook and Twitter liable for all content posted by their users? What about social media users and bloggers for comments made by other people on their content? This uncertainty may result in a chilling effect on free speech online. The lack of clarity demonstrates how vague, broad and overreaching these legal provisions are, such that people cannot know in advance how to regulate their conduct to conform with the law and avoid criminal liability.

Regionally, the judgment may set a worrying example for other Southeast Asian countries, many of which have already been unduly restricting freedom of information and expression online. These countries may invoke Malaysia’s example in efforts to expand these restrictions to intermediaries for third-party content using existing laws. In Thailand, service providers may be liable for false information perpetrated by its users if the service provider "cooperates, consents or acquiesces to the perpetration of an offence” under section 15 of the Computer-Related Crimes Act BE 2560 (2007). In Singapore, innocent publication or distribution "without the person’s authority, consent or knowledge, and without any want of due care or caution on that person’s part” is a defence to contempt of court under section 18 of the Administration of Justice (Protection) Act 2016. However, if constructive, instead of actual knowledge is required, then act’s reach would be widened significantly.

The current liability regime may result in further instances of disproportionate and unnecessary restrictions on online news outlets and other Internet intermediaries. Against the backdrop of the Internet increasingly becoming the new battleground for issues on freedom of expression and information, the Malaysiakini judgment reinforces the need for legal and policy reform in Malaysia to protect media freedom and online freedom of expression, in line with international human rights law and standards. It is also an opportune moment to become a party to the ICCPR, and examine and reform the other laws in Malaysia also incompatible with human rights law that may be abused to unduly restrict freedom of expression online, including the Sedition Act 1948 and the Communications and Multimedia Act 1998.

* Daron Tan is a legal consultant at the International Commission of Jurists, Asia & the Pacific Programme.