ARTICLE 19 calls on the Federal Court of Malaysia to respect international freedom of expression standards on intermediary liability in the case against Malaysiakini, a leading Malaysian web-based news portal known for its impactful reporting on human rights issues.
If Malaysiakini is held liable for comments made by its users, this will have a serious chilling effect on freedom of expression and will greatly undermine news publishers’ business models at a time when the news industry is struggling to survive. It can potentially lead to the complete shutdown of online comments, which would undoubtedly diminish online freedom of expression.
ARTICLE 19 repeats its call to end the ongoing harassment and legal attacks against Malaysiakini.
On 15 June, Attorney General Idrus Harun filed criminal contempt proceedings at Malaysia’s Apex Court against Malaysiakini and its editor-in-chief, Steven Gan. The proceedings related to comments by readers on the Malaysiakini. The commenters expressed their dissenting views, disagreeing with the acquittal of previous chief ministers without trial and lamenting that the courts have become null. The Attorney General argued that the five comments implied that the country’s courts had committed wrongdoing, were involved in corruption, failed to uphold justice, and had compromised their integrity. On 25 June, Malaysiakini applied to set aside the Federal Court ruling that granted leave to the Attorney General Idrus Harun to start proceedings against Malaysiakini.
Today, the Federal Court of Malaysia dismissed Malaysiakini’s application to set aside the order, granting leave to initiate contempt proceedings by the Attorney General Idrus Harun. The Federal Court dismissal is a signal that Malaysia is taking a step backward in protecting and promoting freedom of expression. The Federal Court will hear the substantive contempt on the merits on 13 July. The court has specifically made an order to parties not to comment on the case to avoid sub-judice.
International freedom of expression standards and liability for third party comments
ARTICLE 19 notes that online comments by Internet users are an expression of debate on matters of public interest by the public itself rather than a form of journalism. The value of comment on online platforms, therefore, is that they enable and promote public debate in its purest form. Online news sites should be considered as hosts – rather than publishers – for the purposes of the comment sections on their website. As such, they should only be held liable for their users’ comments if they have intervened in the content at issue.
The UN Special Rapporteur on Freedom of Expression in his thematic report on the Internet (A/HRC/17/27) recommended that “censorship measures should never be delegated to private entities, and that no one should be held liable for content on the Internet of which they are not the author.”
Problems with the Court’s decision
ARTICLE 19 calls on the Federal Court to respect international freedom of expression standards in this area. Finding Malaysiakini liable for the comments of its users will have a chilling effect and restrict the free flow of information. If website owners and administrators can be criminally liable for the actions of Internet users, they might simply prevent users from posting comments on their website altogether, stifling the right to freedom of expression.
Further, the use of criminal contempt proceedings to prosecute the media for comments deemed critical of the judiciary infringes on the right to freedom of expression, which is guaranteed by Article 10(1)(a) of Malaysia’s Federal Constitution and by international human rights law. The Malaysian Bar and several former presidents of the Malaysian Bar have raised concerns with both the substance of the charges and the lack of procedural guarantees of fairness during the proceedings.
The Federal Court should drop the contempt proceedings against Malaysiakini unconditionally.
We also call on the Perikatan Nasional government to ensure that intermediaries enjoy full conditional liability. Further, the government must refrain from all further prosecutions of journalists for their reporting and the other ways of exercising their right to freedom of expression. ARTICLE 19 also calls on the Malaysian government to immediately undertake a comprehensive programme of legislative reform to bring all laws in line with its obligations.