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Thursday, March 4, 2021

What Mkini contempt judgment could mean for social media users


The full majority judgment in the contempt case against Malaysiakini over readers' comments is out, and lawyers said it could have serious repercussions on social media users, both personal and professional.

This article will break down several areas of concern, and how the lawyers believe the Federal Court ruling could apply in future cases.

The majority judgment, which was released yesterday, can be read here. The dissenting judgment can be read here

Malaysiakini spoke to lawyers Asheeq Ali, Azira Aziz, Lim Wei Jiet, Mohamed Haniff Khatri Abdulla, and Bar Council Constitutional Law Committee co-chairperson Karen Cheah for this article.

I have a personal Facebook/Twitter/Instagram/blog. Does the ruling have any effect on me?

There appear to be differing interpretations of the ruling, and whether it applies to individual social media users.

For Azira, and Lim, it does not.

Azira pointed out that the ruling relies heavily on a 2015 Estonian court case (Delfi AS v Estonia), which differentiates commercial websites from personal social media; blogs or websites run as a hobby; or internet forums where users can create topics of discussions on their own.

The majority ruling repeated this Estonian view in Paragraph 99 of their judgment.

However, Asheeq, Cheah, and Haniff opined that the ruling can be used as a precedent against all social media users.

“As long as you enable the comment section in your social media, you are at risk,” Asheeq said.

“I quote the judgment 'It (Malaysiakini) has full control of what is publishable and what is not. It (Malaysiakini) must carry with it, the risks that follow from allowing the way its platform operates’.

“This risk mentioned by the Federal Court is not just for Malaysiakini or any news portal, but it is also a risk for any social media users,” he added.

The following section will outline how much control a social media user has over third party comments.

I'm a social media admin, does that mean I have to monitor and delete comments by others?

For the lawyers who viewed that the ruling does not apply to personal users, whether it applies to admins is a grey area.

Azira said a distinction made in the ruling is whether or not there are economic purposes.

While social media companies like Facebook and Twitter could be exempt from liability as per Paragraph 99, it is unclear whether this extends to content producing websites like Malaysiakini, businesses, or entrepreneurs who post content on social media platforms.

Paragraph 108 of the majority ruling, stated that the ability to control who can post comments and filter offensive comments means that one has control over the comments.

While Twitter gives zero control over third party comments, Facebook and Instagram do.

On Facebook, page admins can block certain users from commenting - thus controlling who can comment.

Facebook admins can also manually set up a filter for unwanted words, and delete unwanted comments just like websites such as Malaysiakini.

"So, it is possible to extend (the precedent) to attach liability on Facebook page admins," Lim said.

Personal Facebook users can also delete others’ comments, and block or unfriend unwanted users, but not set up word filters.

On Instagram, the ability to block users, delete comments, and set up word filters are available to both personal and business accounts.

I run a website that allows for comments, do I have to monitor and delete comments by others?

Yes, you do. The lawyers agreed that as per this court ruling, you are liable for user comments.

For Azira, the ruling makes it especially risky for news websites to have an open comments section.

“Based on this judgment, online news portals must manually moderate each and every comment posted on their website by hiring a comments management team,” she said.

Is it only comments in contempt of court that can get me in trouble?

Haniff and Asheeq both opined that the ruling can be used in defamation cases as well.

The Federal Court in Paragraph 95 of its majority ruling, said that while the Delfi case dealt with defamation and not contempt, the same principle applies on whether Malaysiakini was liable for users' comments.

What if no one alerted me there were bad comments?

In the Malaysiakini case, both the news portal’s CEO Premesh Chandran, acting for the company, and editor-in-chief Steven Gan denied knowledge of the comments.

 Malaysiakini CEO Premesh Chandran and editor-in-chief Steven Gan.

However, the Federal Court’s majority ruling found that this was not an acceptable excuse (Paragraphs 79 to 110).

Among others, the majority bench said it was expected of Malaysiakini, with its experience, to foresee that there might be negative comments in the article “CJ orders all courts to be fully operational from July 1” following the acquittal of former Sabah chief minister Musa Aman of corruption charges on the same day.

It also said that the news portal’s other editors did not deny knowledge of the comments.

For the record, the contempt case was not a trial, and no editors were called to testify. The ruling was based on affidavits and submissions.

In the event that this ruling is held as a precedent for individual social media users, Cheah opined that expecting them to predict what others would say would be unrealistic.

“No amount of surrounding circumstances can predict such an outcome.

“One social media user could possibly be talking about a Netflix drama on how wrong the court procedure in the drama is, and then some third party could chime in to comment alluding to some irrational conclusion of how wrong the judiciary in the country is – and this may be seen as scandalising the court,” she said.

But there are too many comments!

According to Paragraph 74 of the majority judgment, it is not enough for a defendant to say that they "cannot monitor every comment published, due to sheer volume." 

Paragraph 77 also stated that "sheer volume cannot be the basis for claiming lack of knowledge, to shirk from its responsibility."

How quickly do I have to delete comments?

According to Paragraph 74 of the majority judgment, there must be a system in place capable of "rapidly" detecting and removing offensive comments.

Haniff said what "rapid" means, will depend on a case by case basis.

"It depends from case to case, the word 'rapidly' entails reasonableness.

"What would be reasonable will depend on case by case, and judge to judge," he added.

For context, the Malaysiakini article on which the offending comments were posted, was published on June 9, 2020.

Malaysiakini was made aware of the offending comments on June 12, 2020 after a call from the police.

The comments were deleted within 12 minutes of the news portal being made aware of it.

In her dissenting judgment, Federal Court judge Nallini Pathmanathan ruled that this was within the purview of "reasonable time".

So what does this mean?

For Lim, who is also a Muda co-founder, the Federal Court’s decision was akin to opening a Pandora’s Box.

“It is dangerous to go down this path of attaching liability for contempt on third party comments based on the constructive knowledge test.

“It has opened a Pandora's Box, and there is no limit on the extent in which individuals or companies can be liable for merely having control over a page or platform,” he said.

The precedent, Cheah stressed, also has a negative impact on freedom of expression.

“With this case, it would appear that the press, civil society organisations and individual citizens having such social platforms will be put at risk for being cited for contempt for scandalising the courts on issues relating to the judiciary.

“We are all now legally obligated to continuously screen every comment on the postings placed on these social media platforms and delete them as soon as such odious comments are posted under the thread of our postings,” she said.

The Bar Council Constitutional Law Committee co-chairperson added that there will also be a cloud of uncertainty over social media users until boundaries are legislated as to what constitutes “scandalising the court”.

Meanwhile, Azira, who believed the ruling only applies to websites, hoped that the public discourse on issues will continue on other platforms.

“On a human rights advocacy standpoint, my worry is that the space for discourse is getting smaller for people to directly engage and discuss current governance issues raised by articles resulting from investigative journalism,” she said. - Mkini

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