The Federal Court today deferred judgement on whether Malaysiakini and its editor-in chief are guilty of contempt over five readers’ comments which appeared in the comments section of an article on the news portal that allegedly scandalised the judiciary.
After hearing submissions in the contempt proceedings, Court of Appeal president Datuk Rohana Yusuf, who chaired a seven-member panel, said the court needs time to deliberate the matter.
“We will inform parties on the date of the decision later,” she said before adjourning the proceeding.
The other judges on the bench were 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 P Nallini, Datuk Vernon Ong Lam Kiat and Datuk Abdul Rahman Sebli.
The contempt bid was initiated by Attorney-General (AG) Tan Sri Idrus Harun against Mkini Dotcom Sdn Bhd, the company which runs Malaysiakini and its editor-in chief Steven Gan, which he named as the respondents over five readers’ comments which the AG contended had undermined the country’s judiciary.
Earlier, senior federal counsel S Narkunavathy, who appeared for the AG, submitted that under Section 114A of the Evidence Act, the news portal had facilitated the publication of the comments.
She said by facilitating the publication of the comments, the respondents were presumed to have published the same.
“This presumption is pursuant to Section 114A,” she said.
Narkunavathy noted the list of existing measures that Malaysiakini said it had, including terms and conditions that subscribers must agree to before they can post comments, a caution statement on the terms and conditions, a software or filter that detects banned foul words or profanities in comments which would be automatically blocked from posting, a system that automatically detects “suspected words” in posted comments for Malaysiakini to review, a peer reporting process where other readers can flag and report offending comments for the editor to review and decide to remove the comments, and a takedown policy.
Narkunavathy also submitted that Malaysiakini had not installed a software system to prevent the publication of offensive comments.
She said the respondents were liable for failing to do so.
While noting that Malaysiakini had said more than 2,000 comments posted daily on its website, she argued that this could not be used by the portal to avoid assuming responsibility over the readers’ comments.
“By providing the platform, we say they exercised control over the platform, and they have to exercise responsibility by removing expeditiously any comments that are adverse.
“The filters they put into place, including peer reporting did not work in this case, because they did not know of these comments until they were notified by police.
“What they put into place did not work to pick up the contemptuous comments. They themselves recognised the comments are contemptuous, so what they put into place did not work.
“They cannot cite the volume, the sheer volume and the difficulty of resources, constraints to shirk the responsibility,” she said, adding however that the contempt of court proceedings against Malaysiakini was not intended to curb freedom of speech.
On the point of having to prove intention in a contempt case, Narkunavathy said it was unnecessary in the case of publication.
“We are saying that intention is not necessary for publication. They (respondents) provided the platform and they allowed it (the comments to be published),” she said.
She submitted that the ease and availability of access to ventilate grievances through social media has extended the avenue of freedom of speech, and with the extension of this freedom, comes the increase of responsibility.
“(This is) especially for parties which provide the platform in which such freedom is exercised,” she said.
Meanwhile, lawyer Datuk Malik Imtiaz Sarwar, who represented Malaysiakini and Gan, argued that there was no intentional publication by the respondents.
He submitted that neither Malaysiakini nor Gan was involved in the publishing of the comments on the online news portal or authored the comments.
Malik said Gan was merely the editor-in-chief and does not have control of the comments uploaded by users.
He added that Malaysiakini was unaware of the comments until 12.45pm on June 12 and that the comments were taken down 12 minutes later once it was made aware of them.
This, he said, showed that there was no intentional publication.
He also argued that actual intention to publish the alleged contemptuous comments must be proven to invite contempt.
But in this case, he said merely showing publication does not invite contempt.
Mere facility for posting comments is not enough to attract legal responsibility,” he said.
The comments appeared in the comment section of an article published on the news portal entitled “CJ orders all courts to be fully operational from July 1” on June 9.
He had, in his affidavit, contended that the comments “clearly meant that the judiciary committed wrongdoings, was involved in corruption, does not uphold justice and compromised its integrity.”
He said the news portal erred in facilitating the publication of the comments which were “unwarranted and demeaning” attacks on the judiciary.
On June 17, the court gave a green light to institute the proceedings after allowing Idrus’ ex-parte leave application on grounds that prima facie for contempt has been established to initiate the proceedings.
Malaysiakini and Gan had subsequently filed a bid to set aside the leave obtained by the AG, but it was rejected by the Federal Court on July 2.
If found guilty of contempt, the news portal and Gan could be fined, or the 58-year-old editor could be jailed.
“Basically, we have to wait for the decision. They haven’t set a decision for that yet. We’ll see,” Gan told reporters outside the courtroom, adding that he could not comment further as per court order.
Present at the court today were Malaysiakini CEO Premesh Chandran and several Malaysiakini staff members.