Mkini Dotcom fined RM500,000 for contempt of court over publication of readers’ comments

February 19, 2021

screenshot_2021-02-19-malaysian-national-news-agency-png — Malaysiakini editor-in-chief, Steven Gan

19/02/2021 03:59 PM

By Jocelyn Ann Dragon

PUTRAJAYA, Feb 19 — The Federal Court ordered Mkini Dotcom Sdn Bhd to pay a fine of RM500,000 after finding the company guilty of contempt of court for facilitating in the publication of readers’ comments.

The court, however, said it was of the view that the second respondent, Malaysiakini editor-in-chief Steven Gan is not guilty of contempt as the court was not satisfied that a case of beyond reasonable doubt had been established against him.

Court of Appeal President Tan Sri Rohana Yusuf who led a seven-member panel ordered Mkini Dotcom to pay the fine within three days from Monday.

She said in meting out the sentence, the court took into account that Mkini Dotcom had extended its apology and that both respondents (Mkini Dotcom and Gan) had cooperated with the police and the courts.

“Having said that, it is our public duty to bear in mind the seriousness of the contemptuous act today which will ultimately undermine the system of justice in this country,” she said adding that the statements had gone both far and wide both locally and internationally,” she said.

Justice Rohana said the contents published were spurious and reprehensible in nature and it also involved allegations of corruption which are all false and untrue.

The decision to find Mkini Dotcom guilty for contempt was a 6-1 majority decision by Justice Rohana, Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim and Federal Court judges Datuk Seri Mohd Zawawi Salleh, Datuk Vernon Ong Lam Kiat and Datuk Abdul Rahman Sebli.

The dissenting judge was Federal Court judge Datuk Nallini Pathmanathan.

In the majority decision, Justice Rohana said the court found the charge for facilitating the publication of the comment against Mkini Dotcom which runs news portal Malaysiakini, has been proven and therefore hold the company guilty of contempt.

She said it was inconceivable that Mkini Dotcom which has a structured, coordinated and well-organised and impressive editorial team and reporting structure to have no notice of the comments.

“Given the fact that the first respondent’s (Mkini Dotcom) news portal enjoys extensive readership and receives about 2,000 comments per day, on top of the fact that it has editorial control over the contents posted in the comment section, the first respondent must assume responsibility for taking the risk of facilitating a platform for such purposes,” she said.

Justice Rohana said Malaysiakini must at least ensure that the Malaysian public be exposed to balance discussions on the issues of public concern and not participate in demeaning and ridiculing the Judiciary to undermine public confidence.

“It would be expected for Malaysiakini to foresee the kind of comments attracted by the publication of the article on the acquittal of Tan Sri Musa Aman (former Sabah Chief Minister) by the court following the withdrawal of (his money-laundering) charges coinciding with the unfortunate timing of the press release by the Chief Justice,” she said.

She said the editorial team must have been aware of the kind of materials published and would be able to foresee the sort of comments that it would attract, given their experience in running Malaysiakini for over 20 years.

Justice Rohana said Mkini Dotcom has full control of what is publishable and what is not, so it must carry with it the risks that follow from allowing the way its platform operated, adding that the company had facilitated the publication of the contemptuous comments by the third party subscribers.

She said media has demonstrated their concern that this case would shackle the media freedom, nevertheless, this unfortunate incident should serve as a reminder to the general public that, in expressing one’s view, it must be done within the bounds permissible by the law.

“The Malaysian public is not known to be rude, discourteous, disrespectful or ill-mannered. Let not the social media change this social landscape of our nation,” she said.

Meanwhile, in the dissenting judgment, Justice Nallini concluded that Mkini Dotcom and Gan are not liable for contempt as the applicant (Attorney-General) failed to establish beyond a reasonable doubt that they (respondents) possessed the requisite knowledge of the existence of the third-party comments and deliberately intended to publish those comments.

She said Mkini Dotcom was not a publisher when the comments first appeared on June 9, last year because it has no knowledge of the same.

On June 17 last year, the Federal Court had allowed AG’s ex-parte application for leave to commence committal proceedings against Mkini Dotcom and Gan in relation to five readers’ comments on an article published by Malaysiakini on June 9 entitled “CJ orders all courts to be fully operational from July 1” which was deemed offensive.

On July 2 last year, Mkini Dotcom and Gan failed to set aside the leave obtained by AG to commence committal proceedings against them.

Lawyers Datuk Malik Imtiaz Sarwar and A. Surendra Ananth represented Mkini Dotcom and Gan while senior federal counsel Suzana Atan and S. Narkunavathy appeared for AG.

After the decision, Gan told reporters that Malaysiakini would be holding a donation campaign to help them raise the money to pay the fine.