The nominal charge heard on July 13 against Malaysiakini and Gan is contempt of court, a charge brought because the online news outlet briefly hosted user comments which allegedly insulted the judiciary. At the hearing, the government’s counsel argued Malaysiakini facilitated the publication of the remarks and was responsible for generating public discussion.
Acknowledging the significant number of reader comments posted on online news site each day, the Court asked whether negligence is sufficient to impute contempt. In the July 2 court proceedings, defence counsel Malik Imtiaz Sarwar representing Malaysiakini and Gan, noted Malaysiakini readers post an average of 2,000 comments a day.
The Counsel for Malaysiakini and Steven Gan referred to the Malaysian Communications and Multimedia Commission (MCMC) code in its arguments stating that the code allows for a two-day window for posts to be taken down. The comments were removed within minutes of police notifying the news portal. Malaysiakini's lawyer Malik Imtiaz told the Federal Court that Gan was not responsible for publishing the comments. Gan, who co-founded Malaysiakini in 1999, could be jailed if judges rule against the site.
Malaysiakini is an IFJ and National Union of Journalists Malaysia (NUJM) project partner on a major European Union-funded Malaysian media reform project, Strengthening Malaysia’s Media for Change. The IFJ is one of a number of media rights organisations watching the hearing, with Malaysian lawyer New Sin Yew acting as the IFJ’s independent legal observer
The IFJ said: “Malaysiakini has a well-earned reputation of honest, independent journalism. The online news outlets actions surrounding these readers’ comments have been entirely appropriate. The IFJ urges the Federal Court to acknowledge both the challenges posed by an evolving media and the critical role played by Malaysiakini and Steven Gan in strengthening and democratising freedom of speech in Malaysia.”