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The sentence by a full majority in the contempt case against Malaysiakini on reader feedback, with lawyers saying it could have serious repercussions on social media users, both personal and professional.
This article will break down various areas of concern and how attorneys believe the Federal Court ruling could apply in future cases.
The majority ruling, which was issued yesterday, can be read here. The dissenting judgment can be read here.
Malaysiakini spoke with attorneys Asheeq Ali, Azira Aziz, Lim Wei Jiet, Mohamed Haniff Khatri Abdulla, and Bar Association Constitutional Law Committee Co-Chair Karen Cheah for this article.
I have a personal Facebook / Twitter / Instagram / blog. Does the sentence affect me?
There appear to be different interpretations of the ruling and whether it applies to individual social media users.
For Azira and Lim, it is not like that.
Azira noted that the ruling is largely based on a 2015 Estonian court case (Delfi AS against Estonia), which differentiates commercial websites from personal social networks; blogs or websites that are run as a hobby; or Internet forums where users can create discussion topics on their own.
The majority ruling repeated this opinion of Estonia in paragraph 99 of its 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 on your social media, you are at risk,” Asheeq said.
“I quote the judgment ‘It (Malaysiakini) has full control over what can and cannot be published. That (Malaysiakini) must carry the risks that arise from allowing the operation of its platform ‘.
“This risk mentioned by the Federal Court is not only for Malaysiakini or any news portal, but it is also a risk for users of social networks ”, he added.
The next section will describe how much control a social media user has over third party comments.
I am a social media administrator, does that mean I have to monitor and delete comments from others?
For the attorneys who saw that the ruling does not apply to personal users, if it does apply to administrators it is a gray area.
Azira said that a distinction made in the ruling is whether or not there are economic purposes.
While social media companies such as Facebook and Twitter could be exempt from liability under paragraph 99, it is unclear whether this extends to websites that produce content such as Malaysiakini, companies or entrepreneurs who publish content on social media platforms.
Paragraph 108 of the majority ruling states that the ability to control who can post comments and filter offensive comments means that one has control over the comments.
While Twitter does not give any control over third party comments, Facebook and Instagram do.
On Facebook, page administrators can block certain users from commenting, thus controlling who can comment.
Facebook admins can also manually set a spam filter and delete spam comments just like websites like Malaysiakini.
“So it is possible to extend (the precedent) to hold Facebook page administrators accountable,” Lim said.
Personal Facebook users can also delete others’ comments and block or remove unwanted users, but not set word filters.
On Instagram, the ability to block users, delete comments, and configure word filters is available for personal and business accounts.
I run a website that allows comments, do I have to monitor and remove comments from others?
If you can. The lawyers agreed that according to this court ruling, you are responsible for user comments.
For Azira, the ruling makes it especially risky for news websites to have an open comment section.
“Based on this judgment, online news portals must manually moderate each and every comment posted on their website by hiring a comment management team,” he said.
Is it just comments in contempt of court that can get me in trouble?
Haniff and Asheeq were of the opinion that the ruling can also be used in defamation cases.
The Federal Court, in paragraph 95 of its majority ruling, said that although the Delfi case dealt with defamation and not contempt, the same principle applies to Malaysiakini was responsible for user feedback.
What if no one alerted me that there were bad comments?
At Malaysiakini In this case, both the CEO of the news portal, Premesh Chandran, representing the company, and editor-in-chief Steven Gan denied having knowledge of the comments.
However, the majority decision of the Federal Court determined that this was not an acceptable excuse (paragraphs 79 to 110).
Among others, the majority bank said that it was expected Malaysiakini, with your experience, anticipate that there could be negative comments in the Article “CJ orders all courts to be fully operational as of July 1” following the acquittal of former Sabah chief minister, Musa Aman, of corruption charges on the same day.
He also said that the other editors of the news portal did not deny having knowledge of the comments.
For the record, the contempt case was not a trial and no publisher was called in to testify. The ruling was based on affidavits and submissions.
In the event that this ruling is carried out 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.
“A social media user could be talking about a Netflix drama about how wrong the judicial procedure is in the drama, and then some third party could step in to comment alluding to some irrational conclusion of how wrong the judiciary is in it. country, and this can be seen as a scandal for the court, “he said.
But there are too many comments!
According to paragraph 74 of the majority ruling, it is not enough for a defendant to say that he “cannot monitor all the comments posted, due to the large volume.”
In paragraph 77 it is also stated that “sheer volume cannot be the basis for alleging lack of knowledge, to evade responsibility”.
How fast do I have to delete comments?
According to paragraph 74 of the majority ruling, there must be a system capable of “rapidly” detecting and eliminating offensive comments.
Haniff said what “fast” means will depend on each case.
“It depends from case to case, the word ‘quickly’ implies reasonableness.
“What would be reasonable will depend on the case by case, and from judge to judge,” he added.
By context, the Malaysiakini The article in which the offensive comments were posted was published on June 9, 2020.
Malaysiakini learned of the offensive comments on June 12, 2020 after a call from the police.
The comments were removed within 12 minutes of the news portal finding out about it.
In her dissenting judgment, Federal Court Judge Nallini Pathmanathan ruled that this was within the scope of a “reasonable time.”
So what does this mean?
For Lim, who is also a co-founder of Muda, the Federal Court’s decision was similar to opening a Pandora’s Box.
“It is dangerous to go down this path of attributing liability for contempt to third party comments based on the constructive knowledge test.
“It has opened a Pandora’s box and there is no limit to the extent to which individuals or companies can be held liable for the mere fact of having control over a page or platform,” he said.
The precedent, Cheah emphasized, also has a negative impact on freedom of expression.
“With this case, it would appear that the press, civil society organizations and individual citizens who have such social platforms will run the risk of being cited for contempt for scandalizing the courts on issues related to the judiciary.
“Now we are all legally obliged to continually scrutinize all comments on posts placed on these social media platforms and remove them as soon as those hateful comments are posted in our post thread,” he said.
The co-chair of the Constitutional Law Committee of the Bar Association added that there will also be a cloud of uncertainty over users of social networks until the limits are legislated on what constitutes “scandalizing the court.”
Meanwhile, Azira, who believed the ruling only applies to websites, expected public discourse on the issues to continue on other platforms.
“From a human rights standpoint, my concern is that the space for discourse is shrinking for people to directly engage and discuss current governance issues raised by articles resulting from investigative journalism.” , He said.
