Malaysiakini in crosshairs of judiciary amid online comments crossfire.

2 months ago

BY THE HAMMER

Hearing of contempt proceedings against Malaysiakini and its editor-in-chief Steven Gan at the Federal Court on whether there was an intent to commit contempt of court by facilitating readers’ comments.

Wearing my only batik shirt on a wet Monday morning a few days ago, I raced to the Federal Court in Putrajaya, Grabbing firebrand scribe and lawyer by training R Nadeswaran along the way. 

We arrived at 7.15am and the hallowed halls of the Palace of Justice were still awakening from their weekend slumber. 

We quenched our anticipation for the day with some hot latte at the nearby FamilyMart which had no COVID-less seating, so Nades and I huddled under a large umbrella on the plaza outside, poring over our notes while the pouring chilly drizzle tickled our feet. 

It was D-Day for Malaysiakini’s founder and Editor Steven Gan with the shocking possibility he could face jail time the same day. Painfully aware that the date was July 13, I shrugged off the morning rain and entered the COVID-distanced courtroom.

While I was wary of the proceedings at first for reasons best known to me, I was delightfully surprised at the encouraging and exhaustive exchange between the seven stellar high court judges lording the proceedings and the two respective counsels arguing the case. 

I wasn’t the “expert witness” as they say in legalese, but my experience as a digital publisher made me sit up to chronicle a seminal moment for the online industry. Especially the implication for brands who manage online comments in their feeds. 

Any wayward comment that slips through the cracks could land the publisher in court. And the needle was fluttering on the blame scale while the scales of justice wanted answers.

The Malaysia Chinese Newspaper Editors Association had earlier weighed in saying “the contempt proceedings over public comments were inappropriate, adding the government should target irresponsible internet users and not the media that is providing a platform for expression.”

Online reviews can also make or break a brand, so while keeping the feedback channel open is healthy, brands are also at the mercy of those with malicious intent. Popular travel site Tripadvisor is a classic case of how customer reviews helped them become the world’s largest travel platform, guiding 463 million travelers every month.

Back to this landmark case, its judgement was going to impact beyond Malaysian shores and we had plonked ourselves into the driver’s seat…

… Popular travel site Tripadvisor is a classic case of how customer reviews helped them become the world’s largest travel platform, guiding 463 million travelers every month…

This is the first time Malaysiakini is being cited for contempt of court in its 20-year-old history.

The half-day session saw some of our best judges being enlightened about digital publishing, to fit their world view in the context of the case. 

Chairing the apex bench was Court of Appeal President Rohana Yusuf, the six others on the panel were Chief Judge of the High Court of Malaya Azahar Mohamed, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and Federal Court judges Mohd Zawawi Salleh, Nallini Pathmanathan, Vernon Ong Lam Kiat and Abdul Rahman Sebli.

“Did Malaysiakini intentionally publish the comments that were contemptuous towards the judiciary?”

We are all aware of the usual liability disclaimers publishers make as a matter of course, but never have I seen it being made into a federal case. Exciting! 

Defence counsel Datuk Malik Imtiaz, socially distanced Malaysiakini CEO Premesh Chandran, and Editor-in-Chief Steven Gan

And at this juncture, it is only right for me add another disclaimer to this story: I wish to respectfully dignify the role of the court in these proceedings and my personal narrative here is just an observation of what transpired. I do not wish to undermine or underscore any party in this matter as I know this case has yet to reach its conclusion. More importantly, my 20,000 readers need to be informed of what could lie in store for them when the court delivers its final say, notably if it sets precedence.

… More importantly, my 20,000 readers need to be informed of what could lie in store for them…

OK, let’s continue….

This furore concerning 5 online comments made by as many subscribers on Malaysiakini’s website on June 9 (comments which were later deleted) and its ensuing debate has questioned the way Comment Administrators  operate.

Is this a job for a human or a machine?

Malaysiakini has 8 million unique visitors per month and 2,000 readers comments daily.

Without sounding too simplistic, contempt of court is the offence of being disobedient to or disrespectful toward a court of law and its officers in the form of behaviour that opposes or defies the authority, justice and dignity of the court.

“You must prove beyond a reasonable doubt Malaysiakini have the intention.”

Mohd Zawawi Salleh, Federal Court judge

Senior federal counsel S Narkunavathy, who appeared on behalf of Attorney-General Idrus Harun, told the court that the news portal and its editor-in-chief Steven Gan had “facilitated” commenters by providing the platform and thus presumed to have published the comments.

Federal Court judge Mohd Zawawi Salleh interjected at one point to advise the prosecuting team, “You must prove beyond a reasonable doubt Malaysiakini have the intention.”

Federal Court judge P Nallini added that “negligence does not amount to contempt of court”.

While the lawyers from Malaysiakini and the Attorney-General’s office argued their case, I was left bewildered with the legal parlance flying around courtroom….

Wilful disobedience.

Enabling is different from facilitating, which may or may not amount to contempt

Foundation in fact.

First publisher (website owner) vs subordinate publishers (under the radar of innocent dissemination). 

Are comments regarded as secondary content?

When does one become a publisher? When one becomes aware of the online comments made, or when after the comment is posted.

In wrapping up submissions, defence counsel Datuk Malik Imtiaz told the apex bench that the respondents should not be punished for the alleged contemptuous comments of its subscribers.

“Do not shoot the messenger, unless you prove that the messenger is the creator of the message being delivered.”  

He also added, “Editor-in-chief Steven Gan is not involved in any way with the intentional publication of alleged contemptuous comments under an online article as he is merely the online news portal’s editor-in-chief and has no hand in the comments uploaded by the users.”

At 12.32pm, the Federal Court reserved judgment on the attorney-general’s contempt bid against Malaysiakini and its editor-in-chief Steven Gan. Court of Appeal President Rohana Yusuf says the bench will need time to deliberate and that the court will inform them later of the date of the decision.

When I heard the mentions of self-regulation and the content code memories of my good friend, the late Tony Lee, who served three  terms as President of the Association of Accredited Advertising Agents (4As) and helmed the pro-tem committee on formulating the content code during its infancy rushed to mind. He was also the first Chairman of the Communications and Multimedia Content Forum (CMCF) and served for six years.

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