Simplified: The 'Malaysiakini' decisions in the Federal Court - what the judges decided and why it matters

• Published date: 21 February 2021
• Publication title: Malay Mail Online

News outlet Malaysiakini on Friday found itself held liable and fined RM500,000 by the Federal Court for the contemptuous comments of five readers that were hosted on its website in June 2020.

With a seven-member panel at the Federal Court examining the case, there was a split decision as six judges found Malaysiakini guilty of contempt of court for facilitating the five subscribers' comments, while one judge disagreed that the 21-year-old news site should be held guilty.

Here's a brief chronology of events that led to the Federal Court rulings on Friday according to news reports and court documents, and a quick look at how and why the judges arrived at the decisions.

1. The facts

On the morning of June 9, 2020, the prosecution informed the High Court that it was withdrawing all 46 corruption and money-laundering charges against former Sabah chief minister Tan Sri Musa Aman, which then resulted in the High Court acquitting the politician.

Later, on the same day past noon, news portal Malaysiakini published a news report titled 'CJ orders all courts to be fully operational from July 1', which was regarding a press release by the chief justice of Malaysia on the operation of courts in line with the recovery movement control order (RMCO).

Subscribers of Malaysiakini then posted comments under this news report in the comments section on its website, including the five comments which, among others, contained criticisms against the judiciary and the chief justice over Musa's acquittal. This was despite the acquittal being due to the prosecution's decision to drop the charges (which was explained later in the day by the attorney general as due to the unavailability of certain documentary evidence and witnesses).

According to Malaysiakini, comments can only be made by active paying subscribers, with such comments posted automatically on its website without any prior manual moderating, and with only a filter software to disallow comments from being uploaded if foul words from a list by Malaysiakini's editors are detected.

After they are published, the system will detect any comments with 'suspected words' and flag the comment to the moderator for review, while a peer-review process allows other readers to flag or report offending comments seen on the website which will then result in an editor reviewing and deciding whether to remove the comment.

Malaysiakini said no readers had reported these comments and the comments did not carry any of the 'suspected words' that Malaysiakini's filter software could detect.

Malaysiakini had said it was not aware of the five comments until June 12 at 12.45pm when it was alerted by the police as to investigations into the comments, with Malaysiakini's editorial team then immediately reviewing the comments and removing these and other comments at 12.57pm on the same day.

Malaysiakini's editor-in-chief Steven Gan was contacted by the police on June 15. The following day, he gave a statement to the police as requested. Then, on June 26, Malaysiakini provided details of the five registered users who had made the comments to the Malaysian Communications and Multimedia Commission (MCMC) and the police in compliance with a June 24 request by MCMC. Malaysiakini has since permanently banned all five users.

On June 17, 2020, the Federal Court granted leave or allowed the attorney general to start contempt of court proceedings against Malaysiakini's operator Mkini Dot Com Sdn Bhd and Malaysiakini's 'Ketua Editor' for facilitating the publishing of the five comments. The five comments had been deleted from the news site by then.

The attorney general said Malaysiakini knew or should have known that the words in the comments amounted to an insult against the judiciary and the chief justice of Malaysia, and threatened public confidence in the judiciary, as well as tarnished the dignity and integrity of the judiciary.

Malaysiakini's lawyer urged the Federal Court to not hear the contempt of court case, arguing that the attorney general should have started the contempt proceedings at the High Court to allow the news outlet to have the option of appealing any rulings, instead of going straight to the Federal Court which is the highest court and where further appeals cannot be pursued.

But the Federal Court on July 2 dismissed Malaysiakini's application to set aside the leave decision and decided to proceed with hearing the contempt of court proceedings due to the five...