Malaysian Bar decries Malaysiakini’s court fine, says RM500,000 not proportionate to offence

February 20, 2021

KUALA LUMPUR, Feb 19 — The Malaysian Bar has expressed its worry over the RM500,000 fine imposed by the Federal Court earlier today on online news portal Malaysiakini for contempt, calling it exorbitant and excessive.

Its president Salim Bashir said a lower amount would have been sufficient to demonstrate the Court’s disapproval of Malaysiakini’s offence.

“The sentence handed down in the form of a hefty fine does not reflect the proportionality of the offence committed, coupled with the mitigating actions taken by the independent news portal,” he said in a statement.

Salim added that the Court ought to have considered exercising leniency in its sentencing as Malaysiakini had already offered its unreserved apologies and had removed the comments immediately upon being alerted.

“This was also its first time being cited for contempt, and coupled with the fact that since this was a Federal Court decision, Malaysiakini had no further legal recourse to appeal on the sentencing.

“The decision will cast wide ramifications that will impute legal responsibility on all social media platform owners, individuals or companies that provide a facility for readers to post their comments,” he said.

This could also lead to such platforms taking precautionary measures, such as disabling their comments section, to avoid any repercussions.

“The majority decision of the Federal Court seems to have taken a route to imply that constructive knowledge is sufficient to prove publication in the context of contempt.

“The Bar takes the view that this is a cause for concern, because even if steps are taken to remove the comments, liability can still be attached to the news portals or social media owners,” Salim said.

Although he said the Bar respects the Court’s decision, Salim said the Bar also has reservations and concerns on the ramifications of this decision.

“We take the view that the Court’s decision is not in consonance with the fast-changing media landscape in our country. It brings a chilling effect to the press freedom of online media organisations and civil society groups.

“This decision will have long-term consequences on the use of social media unless there are strict screening mechanisms in place for each and every comment. Such platforms could be held in contempt because of their role as publishers and this will put them at unnecessary legal risk,” Salim said, adding that comments features are important for public discussions and form a key part of the freedom of expression.

The Bar president also reminded the public to refrain from abusing freedom of speech by writing nefarious and malicious comments online and in the media.

“While we acknowledge that freedom of speech is a feature of paramount importance in a democratic nation, the Bar reiterates its call for the codification of the law of contempt in order to provide a clear and unequivocal definition of concepts such as ‘scandalising the court’ so that there will be greater certainty in this area of law,” he said.

The sentencing by Court of Appeal president Tan Sri Rohana Yusuf of the decision by a panel of seven judges was due to Malaysiakini’s facilitation of five readers’ remarks against the judiciary on its website.

The five comments were posted under a June 9, 2020 news report titled “CJ orders all courts to be fully operational from July 1” with Malaysiakini having previously said that it was alerted at 12.45pm on June 12 about these comments when police contacted them to notify them about investigations regarding these comments.

In court documents, Malaysiakini previously said it was not aware of the five offensive comments previously as no readers had reported these comments and as the comments did not carry any of the “suspected words” that Malaysiakini’s filter could detect, further noting that the editorial team had immediately reviewed the comments upon being alerted by the police and removed the comments at 12.57pm the same day.

On June 17, the Federal Court allowed the Attorney General to start contempt of court proceedings against Malaysiakini’s operator Mkini Dot Com Sdn Bhd and Malaysiakini’s “Ketua Editor”.

Shortly after the decision was handed down, Malaysiakini managed to raise the required amount within four hours, following an outpour of contributions from the public, political parties, and individual MPs, among others.