https://www.accessnow.org:443/malaysiakini-malaysia-conviction/

News media conviction must not set precedent for curbing online expression in Malaysia

Access Now is deeply concerned about  a precarious precedent set today, 19 February, limiting  the right to freedom of expression online in Malaysia, after independent media outlet Malaysiakini was convicted by the country’s highest court for user comments published on its site. 

The Federal Court of Malaysia charged the media outlet’s operator, Mkini Dot Com Sdn Bhd, with contempt of court on a motion moved by the Attorney General relating to the outlet’s alleged failure to moderate five comments on its platform deemed to scandalize the judiciary, fining it RM 500,000 (approx. USD 123,548). The user comments had been deleted by Malaysiakini upon notification by the police.

“Malaysiakini’s conviction marks serious progress for the government’s proliferation of online censorship in Malaysia,” said Dhevy Sivaprakasam, Asia Pacific Policy Counsel at Access Now. “It widens the potential for further legal harassment and prosecution of critical dissent in the country, in violation of the country’s obligations to protect, promote and fulfil fundamental  rights — both online and off.”

The judgement effectively enshrines within case law, severe intermediary liability measures that require platforms to both actively monitor comments by third parties on their sites, and  be accountable for the content of those comments. This  not only undermines the rights to freedom of expression and access to information online, and runs counter to international legal standards on these rights and the legal liability for online platforms and internet intermediaries for user-posted content, it’s a near impossible feat.

“The decision today by Malaysia’s highest judicial body is deeply disturbing,” said Raman Jit Singh Chima, Asia Pacific Policy Director at Access Now. “By imposing harsh liability measures on internet platforms for what their users say — such as the case against Malaysiakini — the judiciary has widened the scope for authorities to abuse contempt indictments to control and curtail the rights of individuals to freedom of expression and information online.” 

Malaysiakini argued that the news platform should not be held liable for the thousands of posts or comments made daily, and that the burden of proof lay on the prosecution to show that the platform had “knowingly published” the allegedly offensive comments. After a six-to-one guilty verdict, the sole dissent, Justice Nallini Pathmanathan, accepted this argument in noting that “requisite knowledge” had not been proved without reasonable doubt and that Malaysian law only required a “flag and take down” policy for “offensive” comments — not proactive monitoring of content.

This destructive conviction of independent media comes amidst continuing efforts to curtail press freedom in Malaysia, and state abuse of legal frameworks to target and curb independent media outlets, journalists, bloggers, and civil society critical of the regime. 

Access Now stands by previous calls to the Malaysian government  to uphold foundational protections for free expression, and cease harassment of Malaysiakini.

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