Freedom of Speech Must be Exercised Responsibly

Freedom of expression has been abused to the extent that critics believe they have the license to say whatever they want about the government whereas the reverse never applies. If it happens and the government takes action, these critics will claim that they are being robbed of their right to express themselves.

Haden Hoo

While democracy allows freedom of speech, citizens must exercise this right responsibly because they cannot say anything, anywhere they like at anytime. This applies to all citizens regardless of rank, status, class, race, gender. With the increase in democratic space of expression, freedom of speech is abused when netizens hurl all kinds of criticisms at victims, including the Prime Minister.

Recently, PM Najib Prime Minister Najib Abdul Razak served news portal Malaysiakini with a writ of summons (http://tinyurl.com/mkd54d5) over two ‘Yoursay’ articles (a compilation of readers’ comments) published on May 14, namely ‘A case of the PM reaping what he sows’  (http://tinyurl.com/oos33o8) and ‘How much will Najib spend to keep Terengganu?’ (http://tinyurl.com/ktx2qs9) deemed defamatory. The writ and statement of claim, delivered by hand to the news portal at its Bangsar Utama office on June 3^rd 2014, named Malaysiakini publisher Mkini Dotcom Sdn Bhd, editor-in-chief Steven Gan and chief editor Fathi Aris Omar as defendants. The co-claimant in the suit is Umno executive secretary Abdul Rauf Yusoh.

South of the border, Singapore Prime Minister served blogger Roy Ngerng Yi (http://tinyurl.com/p4exwta) with a letter of demand regarding an article Noy had written and published titled “Where Your CPF Money is Going: Learning from the City Harvest Trial.”

The Malaysian Bar Council requested (http://tinyurl.com/ktqrq8a) the PM to withdraw the defamation suit and to engage Malaysiakini commenters by replying or rebutting adverse or incorrect comments. Nathaniel Tan’s comment in Malaysiakini (http://tinyurl.com/njoxzzc) advised the PM to take those criticisms in stride and keep smiling “in a healthy spirit of democracy.” Others continued to mock and deride the PM.

Many have failed to realize the legal implication of Malaysiakini’s deliberate selection and publication of those virulent comments in the two offending articles, the contents of which smack of defamation.

In layman’s terms, defamation occurs when a person expresses words that may lower another person’s reputation in the eyes of the public. In the PM’s suit, the Defamation Act 1957 is applicable.

However, the Malaysian Defamation Act 1957 does not define defamation as the matter is governed by common law, which recognizes two forms of defamation that is libel and slander. The difference lies in the means or medium by which the defamatory material is communicated. It is a fundamental distinction between a written or printed word, which is, concludes as libel and spoken words, which are considered as slander.

In this case, what Malaysiakini has done can be considered as libel because the comments are expressed in a permanent form easily read by anyone such as in a book, e-mail or picture. Defamation can also be in the form of slander as when such words are expressed temporarily, when spoken or made by body movements.

However, in criminal cases of defamation, when the state prosecutes a private person for defamation, Section 499 to Section 502 of the Penal Code is applicable. Many critics have failed to realize that libel and slander are civil and criminal offences. Hence, anyone found guilty of libel or slander may be sued in court, and face jail sentence. In civil cases, the defamed will sue the maker of the defamatory words for compensation, the amount of which depends on the damage caused to the reputation of the person suing.

On the other hand, in criminal cases, the punishment for defamation is a jail sentence for a maximum of two years, or a fine, or a combination of a jail sentence and a fine [Section 500-502 Penal Code].

Freedom of expression has been abused to the extent that critics believe they have the license to say whatever they want about the government whereas the reverse never applies. If it happens and the government takes action, these critics will claim that they are being robbed of their right to express themselves.

What has been published in Malaysiakini in both articles and also in many sites are not only false and baseless allegations and libel which disparages our PM and derides his professional and personal character, credibility, and integrity.

The Malaysian Bar Council’s call for the PM to respond to Malaysiakini readers failed to acknowledge that there are proper avenues for complaints, which should be carried out responsibly and respectfully. Instead, they threw a red herring and talked about engagement with readers.

The issue is about accountability and responsibility in what anyone says in oral and in written form. One cannot assume that commonplace beliefs are truths just because it has been repeated many times by different portals or people. Every statement must be substantiated by solid evidence – otherwise it is fabrication of truth.

Quite alarmingly, the call by Malaysian Bar smacks of double standards. While it stressed the need for public figures to be accountable for their actions, what the PM has done is to resolve the issue in court for the guilty and irresponsible ones to be accountable for their flippant words. Surely as a news portal, Malaysiakini should know what can and cannot be published. They must face the consequences of their failure to execute professionalism in airing appropriate articles that bind the nation.

As a professional body, they have overstepped boundaries by being involved in politics and in complete disregard and disrespect of the Prime Minister’s right to seek justice in the court of law.

I hope the PM wins this case and that it will set a precedent to deter netizens from shooting anything that pleases them and to deter media of any form of airing populist articles irresponsibly. Freedom must be cherished responsibly.