Apex court hears arguments if 'facilitating' readers' comments amount to contempt

Contempt proceedings against Malaysiakini at the Federal Court today saw prosecutors and the defence arguing at length on whether the news organisation had an intent to commit contempt by facilitating readers' comments.

Senior federal counsel S Narkunavathy, who appeared on behalf of Attorney-General Idrus Harun, told the court that the news portal and its editor-in-chief Steven Gan had "facilitated" commenters by providing the platform and thus presumed to have published the comment.

She submitted that it is not required by law for them to demonstrate that Malaysiakini had the intention to publish the comments that were allegedly contemptuous towards the judiciary.

"We say there is no requirement in law for the applicant to demonstrate that the respondent intentionally published the comments," said Narkunavathy.

According to the legal representative for the attorney-general, Malaysiakini could also have provided a more proper mechanism to filter comments made by subscribers on its site.

It was not sufficient for the portal and Gan to say that they had no knowledge of the comments when they failed to put such a mechanism in place, Narkunavathy added.

However, Malik Imtiaz Sarwar, the counsel for Malaysiakini and Gan, argued that actual intention must be proven to invite contempt in the case.

The attorney-general merely showing the publication of the alleged contemptuous comments does not invite contempt, he submitted.

"It must be intentional publication, there must be an intention to publish scandalous material.

"Mere facility (providing the comment section) for posting comments is not enough to attract legal responsibility," Malik added.

He also stressed that if the mere facility is all it needs to cite one for contempt, then the court would be kept busy with cases involving many companies for alleged contempt.

Malik said this would then have a chilling effect in terms of the exercise of freedom of speech under Article 10 of the Federal Constitution, among others.

Judges: Intent must be proven

However, according to some members of the seven-person bench, the intention has to be proven in contempt of court case.

This was mentioned by Federal Court judge Mohd Zawawi Salleh, who interjected Narkunavathy when she submitted that intention was supposedly not necessary in case of publication.

"There must be. You must prove beyond a reasonable doubt they have the intention," he said.

Another member of the panel, Federal Court judge P Nallini (above) also added in, citing a recent contempt of court case against lawyer Arun Kasi. 

She said in the case, the intention to publish was clear.

This was then agreed to by Narkunavathy.

Earlier during today’s proceedings, senior federal counsel Suzana Atan also made an oral application to call in an expert witness to be examined further on the system used on Malaysiakini's website, particularly its comment section and the filter used to screen comments posted by subscribers.

This came as they were not satisfied with the expert's report, which was enclosed in an affidavit submitted by the respondents.

Based on Narkunavathy's submission, they were seeking to prove to the court that Malaysiakini could have provided a more extensive filter by adding more keywords into its automatic comments screening system.

She said the expert's report also did not say how extensive was the efforts by Malaysiakini's comment administrators to find and remove potentially contentious comments.

However, this had invited questions from the panel of judges whether the attorney-general was trying to prove that the news company was being negligent.

"But does that amount to contempt? Because they did not put in place proper (measures), therefore you are saying they are negligent?" Nakurnavathy was asked.

Nallini also added that negligence does not amount to contempt of court.

In wrapping up submissions, Malik (below) told the apex bench that the respondents should not be punished for the alleged contemptuous comments of its subscribers.

“Do not shoot the messenger, unless you prove that the messenger is the creator of the message being delivered,” he said.

Narkunavathy also concluded submissions by saying that Malaysiakini must exercise control and that it is not sufficient to say that the respondents do not have knowledge about the content when they do not have a proper mechanism in place to deal with alleged contemptuous comments.

Chairing the apex bench, Court of Appeal President Rohana Yusuf then said the court reserves judgment on the matter to a date to be fixed.

“The bench will need time to deliberate,” she said, adding that the court will write to both parties to inform on the date of the decision once it is fixed.

Asides from Rohana, Zawawi and Nallini, other members of the bench were Chief Judge of Malaya Azahar Mohamed, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim, and Federal Court judges Vernon Ong Lam Kiat and Abdul Rahman Sebli.

Idrus had initiated the contempt proceedings over five readers' comments in a Malaysiakini news report published on June 9 which have since been removed. 

On July 2, a seven-member bench of the apex court dismissed Malaysiakini's application, filed by its operator Mkini Dotcom, to set aside the leave granted to the attorney-general to commence with the contempt application.

Gan co-founded Malaysiakini together with chief executive officer Premesh Chandran in 1999. - Mkini

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