Rights group: Govt has no power to direct Netflix removal of 1MDB documentary

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Unlawful to consider Najib’s request to take down Man on The Run.

The Malaysian government has no power to ask video-streaming platform Netflix to remove the 1Malaysia Development Berhad (1MDB) documentary Man on The Run as requested by former prime minister Datuk Seri Najib Razak, and should not even consider or approve his request as it would be illegal, a human rights group said today.

Lawyers for Liberty (LFL) expressed surprise over the prime minister’s remarks yesterday that the government would consider Najib’s request and that the communications minister’s earlier January 10 remarks that the process would be carried out if there is such a request.

“The government has no such power to consider or allow such an application by Najib as it would be an unlawful exercise of power,” LFL said in a statement today.

LFL argued that Netflix is not subjected to the Communications and Multimedia Act 1998 (CMA) as the internet streaming service is an over-the-top (OTT) platform.

LFL said that removal of the 1MDB documentary from Netflix would amount to censorship, which it said would go against CMA’s Section 3(3) ― which does not allow censorship of the internet.

Section 3(3) states that nothing in the CMA “shall be construed as permitting the censorship of the internet”. Among other things, the CMA is a law used to regulate communications and multimedia industries in Malaysia, and establishes the Malaysian Communications and Multimedia Commission’s powers, besides listing down offences and the related punishments upon convictions.

If the government removes the 1MDB documentary from Netflix, LFL said it would go against the right to freedom of expression under the Federal Constitution’s Article 10(1)(a).

“Thus, the government has no power to direct Netflix to take down the documentary and neither can the Communications Ministry take it down themselves. It would be illegal and an abuse of power for the government to interfere in the dispute between Najib and Netflix, and arbitrarily remove this documentary,” it said.

LFL also said Najib should have pursued court action over the contents of the 1MDB documentary “just like everyone else”, instead of asking the Malaysian government to intervene to have the 1MDB documentary removed from Netflix.

“Should Najib be aggrieved by the contents of the documentary which he claims is sub judice and prejudicial to his ongoing trial, then he must instruct his lawyers to file the necessary application in court. Whether any material or publication is sub judice must be decided by the courts, and not through extraordinary ‘requests’ to the government.

“Any remedy must be obtained by private legal action that is initiated by the person affected, which would be Najib in this case, and not by executive intervention. In short, like everyone else, Najib must seek relief from the courts,” LFL said.

LFL also cautioned that the government risks being seen as having used its powers to “accede to a request by an influential member” in Umno if it were to approve Najib’s request to have the 1MDB documentary removed from Netflix. Umno is a key political party in the federal government.

Noting that Netflix is an international business entity that streams content globally, LFL cautioned that Malaysia’s standing as a place to do business in would be affected if the government interfered in the company’s operations.

“The PM should have made it clear from the outset that the government could not and will not interfere in this dispute,” the group said.

“Hence, we urge the government to make it clear that they will not arbitrarily interfere in this matter and that they will leave it to the jurisdiction of the courts. The government must not act beyond the ambit of its legal powers or entertain a request that is contrary to the law,” it concluded.

It was reported yesterday that Najib had via his lawyers written a January 11 letter to Communications Minister Fahmi Fadzil and two senior MCMC officials, asking for the 1MDB documentary to be taken down from Netflix and for the government to prohibit Netflix from continuing to air the film.

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In the same letter, Najib claimed that the 1MDB documentary’s contents are biased and prejudicial to him as the 1MDB trial against him is ongoing, also alleging that it amounts to contempt of court and proposing the government take legal action against the documentary’s director and production team.

When suggesting legal action against the production team of Man on The Run, Najib had cited Section 211 of the CMA which punishes the providing of offensive content with a maximum RM50,000 fine or maximum one-year jail term or both.

Najib’s lead defence lawyer Tan Sri Muhammad Shafee Abdullah had on Monday complained about the contents of the 1MDB documentary to the High Court during the 1MDB trial proceedings, and said his client had instructed him to take legal action against former attorney-general Tan Sri Tommy Thomas and Sarawak Report editor Clare Rewcastle-Brown over their comments in the 1MDB documentary.

The 1MDB documentary was released in Malaysia’s cinemas on October 19, 2023, and was available on Netflix in Malaysia on January 5.

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After Shafee in the High Court urged for the prosecution to take steps to have the 1MDB documentary removed from Netflix, Man on The Run ― which is one hour and 38 minutes long and also features Najib as an interviewee ― reportedly climbed up the ranks from the fourth spot to the second spot in Netflix’s Top 10 Movies in Malaysia.

At the time of writing today, Man on The Run is at the second spot. – MMO