ARTICLE 19 and CIVICUS are concerned about contempt proceedings and a criminal investigation against online news media outlet Malaysiakini based on comments by readers on the Malaysiakini website. These actions are the latest in a series of attacks on press freedom in Malaysia by the Perikatan Nasional government.
The proceedings relate to comments posted by readers under a 9 June 2020 Malaysiakini article titled, “CJ orders all courts to be fully operational from July 1”. On 15 June, Attorney General Idrus Harun, filed an application to initiate contempt of court proceedings against Malaysiakini and its editor-in-chief. In the application, the Attorney General stated, “These comments threaten public confidence in the judiciary and are clearly aimed at tarnishing the administration of justice by the judiciary”. Police officers have independently opened an investigation into the comments on the Malaysiakini website under the Communications and Multimedia Act 1998 and the Penal Code.
ARTICLE 19 and CIVICUS call on the Attorney General to immediately and unconditionally drop contempt proceedings initiated against Malaysiakini and its editor-in-chief and call on the police to end their investigation into the matter. These proceedings set a dangerous precedent by making website owners and administrators criminally liable for the actions of Internet users over whom they have no control.
Malaysiakini, known for its impactful reporting on human rights issues, is one the country’s leading web-based newspapers and has regularly faced restrictions and judicial harassment because of its reporting. Targeting the online news portal will have a chilling effect on the entire media sector and other independent voices in Malaysia. These actions are inconsistent with international human rights standards and Article 10(1)(a) of the Federal Constitution, which protects the right to freedom of expression.
Burden of existing laws on internet intermediaries
Independent media houses in Malaysia have frequently come under fire for publishing content that is critical of the government. Existing laws criminalise speech that is protected by international human rights law and impose liability on internet intermediaries for third party content that is published on their websites or platforms.
The Communications and Multimedia Act 1998 has frequently been used to investigate and prosecute government critics and block access to websites. Section 211 of the law states:
“No content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.”
Violations are punishable by up to one-year imprisonment. The provision poorly defines the liability of online intermediaries, opening the door to imposing liability on websites for user-generated content. Section 233 on the “improper use of network facilities or network service” contains similar language prohibiting offensive content and imposing criminal liability on anyone who “permits a network service or application to be used” to disseminate such content.
A government lawyer representing the Attorney General reportedly invoked Section 114A of the Evidence Act 1950 to demonstrate Malaysiakini’s responsibility for user-generated content posted on its website. That section provides:
“A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved”.
Section 114A was introduced through an amendment to the Evidence Act in 2012, despite vocal concerns from civil society. The section creates a presumption of fact regarding the identity of the individual responsible for a publication, including on online platforms. The Attorney General’s interpretation of this provision to apply to third party user-generated content on a website is a dangerous application that is inconsistent with international human rights law.
International standards
Article 19 of the Universal Declaration of Human Rights (UDHR) guarantees the right to freedom of expression in broad terms to encompass “freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” Article 19 of the International Covenant on Civil and Political Rights (ICCPR) elaborates upon and gives legal force to the right to freedom of expression. Although Malaysia is not a party to the ICCPR, there is strong consensus that Article 19’s protections of the right to freedom of expression are incorporated into customary international law.
In General Comment No. 34, the UN Human Rights Committee, a treaty monitoring body for the ICCPR, emphasized that freedom of expression extends to digital spaces, stating, “Article 19 of ICCPR protects all forms of expression and the means of their dissemination, including all forms of electronic and internet-based modes of expression.” It also emphasized that while contempt of court proceedings may be justified in line with a government’s interest in maintaining public order, such proceedings must comply with the requirements of lawfulness, necessity and proportionality and “must be shown to be warranted in the exercise of a court’s power to maintain orderly proceedings.”
In 2011, four special mandates on the right to freedom of expression highlighted in their Joint Declaration on Freedom of Expression and the Internet that:
“[N]o one should be liable for content produced by others when providing technical services, such as providing access, searching for, or transmission or caching of information; liability should only be incurred if the intermediary has specifically intervened in the content, which is published online.”
Similarly, in 2018, the UN Special Rapporteur on freedom of expression stated that:
“States should refrain from imposing disproportionate sanctions, whether heavy fines or imprisonment, on Internet intermediaries, given their significant chilling effect on freedom of expression.”
The Manila Principles on Intermediary Liability provide guidelines for policy makers, internet companies and civil society concerning the legal liability of internet intermediaries for online communications. The Principles state that laws governing intermediary liability must be precise, clear, and accessible; that intermediaries should be immune from liability for third-party content when they have not been involved in modifying that content; and that they should never be required to proactively monitor content, among other principles.
Recommendations
The contempt proceedings and criminal investigation against Malaysiakini violate the right to freedom of expression. The Perikatan Nasional government must halt its attack on independent news sites and journalists and should instead focus on building public trust through an open and transparent approach to governance. ARTICLE 19 and CIVICUS urge:
- The Attorney General to withdraw his application immediately and end contempt proceedings against Malaysiakini.
- The police to end the ongoing investigation against Malaysiakini under the Communication and Multimedia Act 1998 and Penal Code.
- The Malaysian government to reform laws, including the Communication and Multimedia Act 1998, Evidence Act 1950 and Penal Code, to comply with international human rights standards.