The Malaysian government’s decision to initiate criminal contempt proceedings against Malaysiakini for third party comments on the news portal’s website is deeply concerning. The move sets a dangerous precedent against intermediary liability and freedom of expression. It ignores the internationally accepted norm that holding publishers responsible for third party comments has a chilling effect on democratic discourse. The legal outcome the Malaysian government is seeking would upend the careful balance which places liability on the bad actors who engage in illegal activities, and only holds companies accountable when they know of such acts.
Intermediary liability safe harbour protections have been fundamental to the growth of the internet. They have enabled hosting and media platforms to innovate and flourish without the fear that they would be crushed by a failure to police every action of their users. Imposing the risk of criminal liability for such content would place a tremendous, and in many cases fatal, burden on many online intermediaries while negatively impacting international confidence in Malaysia as a digital destination.
We urge the Malyasian government to drop the proceedings and hope the Federal Court of Malaysia will meaningfully uphold the right to freedom of expression guaranteed by Malaysia’s Federal Constitution.