Weak enforcement opens door for prejudicial comments, says lawyer

There are laws against trials by social media, but action usually comes only after the damage has been done, says criminal lawyer Goh Cia Yee.

Chief Justice Wan Ahmad Farid Wan Salleh had warned that the rapid growth of social media and freedom of expression in the digital age pose a significant challenge to judicial institutions. (Envato Elements pic)

PETALING JAYA:

 Measures to curb online commentary that may prejudice ongoing court cases is often cautious and reactive, enabling public narratives to form long before the courts can intervene, a lawyer says.

There are provisions to curb trials by social media under common law contempt principles and the Communications and Multimedia Act but, according to criminal lawyer Goh Cia Yee, such actions are taken only after the damage has been done.

“In the age of social media, it is difficult for high-profile cases or those that have gone viral to be decided without strong public narratives circulating,” he told FMT.

He was commenting on a warning issued by Chief Justice Wan Ahmad Farid Wan Salleh that the rapid expansion of social media use, coupled with freedom of expression in the digital age, poses a significant challenge to judicial institutions.

He said society often passes judgement long before the courts deliver their decisions.

Wan Ahmad Farid said the rise of “cyber courts” or trials by social media has become more evident, with netizens making assumptions and passing judgment without fully knowing the facts of the case.

He said such behaviour is dangerous as it threatens the integrity of the justice system.

Goh pointed out that opinion is often formed before evidence is tested in court, thus shifting the focus from proof to perception.

“By the time action is taken, online narratives may already be entrenched and difficult to undo,” he added.

Goh said better efforts to preserve legitimate public discussion should be introduced. He cited the examples of the UK and Australia where there are clear frameworks for online commentary.

In the UK, the Contempt of Court Act 1981 criminalises publications that create a substantial risk of serious prejudice, while the judiciary also issues public guidance for media and social media users on what commentary is acceptable.

In Australia, common law and state rules regulate publication, and reform bodies are actively developing clearer statutory guidance.

“These measures include early judicial directions, reporting restrictions, and public advisories to prevent prejudicial posts while preserving legitimate discussion.

“Malaysia could consider similar guidance to ensure fair trials without suppressing open discourse,” he added.

Former Malaysian Bar president Salim Bashir agrees that excessive publicity, speculation, or false perceptions surrounding pending cases can prejudice fair trials and attract contempt.

Salim said judges must also guard against pressure and make decisions strictly according to law and evidence, uninfluenced by media reports or commentary.

“Media freedom is of paramount importance as a check and balance in a democratic state, but expression must remain within the bounds permitted by law,” he told FMT.

“We cannot allow media narratives to dominate legal outcomes… the court should only decide based on law and evidence before it,” he added. - FMT