Case Against Bloggers - Test for Freedom

A leading state-backed newspaper has sued two prominent bloggers, critical of the daily and the government, for alleged defamation raising fears that this represents another attack on freedom of expression in Malaysia.
- Baradan Kuppusamy, Inter Press Service News Agency (IPS)

Apart from the small but active blogging community, opposition lawmakers and independent political analysts believe that the case, filed by the New Straits Times (NST) English language daily, is an attempt to stifle opinion and signals a hardening of the ‘liberal attitude’ of the government of Prime Minister Abdullah Badawi.

Already the South-east Asia Press Alliance (SEAPA) has warned that the suit against Jeff Ooi, who runs the ‘Screenshots’ blog, and Ahirudin Atan, owner of ‘Rocky's Bru’ as potentially impacting ‘’Malaysians' access to diverse and independent news, commentary, and information.’’

SEAPA, in a statement also said that the cases could affect the Internet as a medium for free expression in a country where much of the mainstream press is owned and influenced by political parties and government itself.

Atan’s case comes up for hearing on Thursday while Ooi’s case is slated for Jan. 30.

Reporters Without Borders, the international media watchdog that places Malaysia 92nd among 168 nations surveyed for its worldwide press freedom index has, in an open letter to Syed Faisal Albar, chief of NST, to consider that ‘’the disappearance of the blogs produced by these two outspoken bloggers, Ooi and Ahiruddin (Atan), would be a loss to the Malaysian media world’’.

Though filed by NST, observers see ‘official sanction’ behind the action because of the daily’s close links with the ruling United National Malays Organisation or (UMNO) political party.

In a curtailed mainstream media environment blogging has emerged as the last frontier for press freedom. ‘’It’s that fresh democratic space that this action is endangering," parliamentary opposition leader Lim Kit Siang told IPS. "The NST defamation suits will have a chilling effect as litigation is so expensive that the costs will cripple and paralyse the ordinary individual blogger, making no contribution whatsoever to a healthy process to delineate and define the legal rights of bloggers and citizen journalists.’’

‘’The suits will have far-reaching consequences for the healthy, mature and democratic growth for free speech and expression,’’ said Lim an enthusiastic blogger.

But the action is based on numerous postings criticising senior editors and top company officials of the NST. Ooi and Atan had published a series of stinging articles and allowed comments by others in a running dispute with the NST over various matters. Some relate to alleged plagiarism by a senior NST editor.

Independent observers said the two bloggers had gone ‘out of their way’ to single out the NST and their senior officials for constant criticism. "They virtually threw the gauntlet at the NST," a newspaper editor uninvolved in the controversy told IPS. "I see it as a personality clash combined with a clash between the old and new media."

Both Ooi and Atan said they will contest the claims and defend themselves in court. "Unchartered waters…none of us have passed this way before, so I shall have to tread carefully," Atan said responding to the suit on his blog. "I’ll need you (commentators) to tread carefully, too."

Ooi has additionally been served with an ex-parte injunction to remove, within seven days, postings related to the controversy on his blog.

Most local human rights activists said both bloggers were experienced and have a reputation for responsible publishing.

Bloggers, activists and opposition lawmakers are rallying behind the two. Some bloggers plan to start a legal defence fund to support the two against the NST's financial muscle. Others are preparing a campaign on the Internet to highlight the issues and defend freedom of expression.

An NST official said he action sought protection from defamatory statements posted on the Internet. "We are promoting responsible blogging…we are not seeking to close anybody down. The law applies equally to everybody including in cyberspace," the official was quoted by media as saying. "We should let the law take its course."

However, human rights activists see the action as intimidating and the motive larger then announced. "I feel the NST will fail miserably to beat the blogosphere into fearful submission," said rights activist and blogger Nathaniel Tan who runs the .bangkit.net website that focuses on socio-political issues.

"The action will only embolden more bloggers to not yield or submit," Tan told IPS.

Human rights activist Elizabeth Wong sees the suit as a fight between David and Goliath. "Though the two bloggers have been quick to point out mistakes and catch the ‘spins’ by the NST but their sharpest criticism is for Abdullah," she said. "We are all fearful for the future of freedom of expression and the overarching effect of censorship and self-censorship in cyberspace."

Journalism professor Zaharom Naim said the country’s defamation laws apply equally to the print and the cyber world. "Bloggers are not exempted but it is a thin line between fair comment and defamation," he said at a recent forum on the future of blogs.

Some feel that bloggers had it coming and a media analyst with a multi-national research firm said too many bloggers seem to have an axe to grind. "They shoot from the hip, make wild allegations and allow illogical and unsubstantiated posting by strangers hiding behind pseudonyms," she said. "People believe the postings no matter how ludicrous...this is the price one pays for stifling press freedom in the first place."

News of Malaysia's first defamation law suit against two bloggers has led many in the online community and non-governmental organisations (NGOs) to rally together to protest against the legal action, writes Cindy Tham, Kimberley Lau and Husna Yusop

- Sun2Surf

They are displaying web banners on their blogs, initiated an online movement named Bloggers United and are setting up a fund in the name of blogger solidarity and freedom of expression to defend their rights in the court of law.

The New Straits Times Press (Malaysia) and several individuals of the company filed defamation suits against bloggers Ooi Chuan Aun a.k.a Jeff Ooi and Ahiruddin Attan a.k.a Rocky.

Ooi was served an interim injunction on Jan 11 ordering him to remove 13 postings from his blog, Screenshots, within seven days.

He was also told to stop posting further articles that defame the plaintiffs in Screenshots, or the Internet.

A hearing for an inter parte injunction against Ooi has been fixed for Jan 30.

Ahiruddin, a former NSTP editor, has been summoned to appear before the Kuala Lumpur High Court on Jan 25 for a hearing of an injunction application over 48 articles in his blog, Rocky's Bru.

The plaintiffs in the suits are NSTP, its deputy chairman and editorial advisor Datuk Kalimullah Masheerul Hassan, group editor-in-chief Datuk Hishamuddin Aun and former group editor Brendan John Pereira.

NSTP chief executive officer Datuk Syed Feisal Albar Syed A.R. Albar is also a plaintiff in the suit against Ahiruddin.

The NSTP suits will have a "chilling effect" on freedom of bloggers, as litigation can be expensive and jeopardise a blogger's financial position, said a statement by Bloggers United.

"If you find our post offensive, you may refute us with correct facts and figures and fair comment, in the spirit of free speech," it said.

The group said NSTP's action against the duo would be deemed to be against all bloggers who believe in the right to freedom of expression and justice.

"What a lot of people, particularly bloggers, are worried about now is whether the freedom of expression would be curtailed as a result of this lawsuit," said human rights lawyer Amer Hamzah Arshad.

However, there are also comments in some blogs arguing that freedom of expression practised responsibly would not be curbed and that the plaintiffs should not be faulted for trying to defend their reputation if they have legitimate basis.

In a press conference in the Centre for Independant Journalism (CIJ) here today, its executive director Sonia Randhawa announced that CIJ and 30 other organisations have endorsed a statement calling for the suits to be withdrawn.

They also called on the government to reform the defamation law to protect the weak against large media corporations.

Both Ooi and Ahiruddin and Writers' Alliance for Media Independence (Wami) chairman Wong Chin Huat were also present in the press conference.

"The defamation suits brought against the bloggers curtail freedom of expression and information," the group said in the statement.

The group comprises organisations representing media advocacy, women's rights, human rights, environmental groups and others. They include, among others, Wami, Suara Rakyat Malaysia, Pusat Komunikasi Masyarakat, Charter Aliran 2000, Sisters in Islam, Penang Consumers Protection Association, Monitoring Sustainability of Globalisation and the youth wing of Parti Keadilan Rakyat.

"We are concerned that Jeff and Ahiruddin are being pitted against a large corporation for expressing their views. It is worrisome that the plaintiff is an organisation backed by the government, which has been vocal about taking action against bloggers.

"We are disappointed that law suits continue to be used to intimidate and muzzle freedom of expression and information in this country. Should NSTP get its way, many more powerful institutions and individuals will follow suit, and the blogger-sphere will be reigned by fear and self-censorship," it added.

Randhawa said the point of a defamation act was to protect individuals against big media corporations.

She said the group was concerned that this was not a case where an individual was seeking redress against a large media organisation but the other way round.

"We've also had a history of mega-defamation suits in this country," she said, citing the 2005 award of RM4.5 million to Datuk Seri Anwar Ibrahim against Khalid Jafri, the author of 50 Reasons Why Anwar Cannot Be Prime Minister.

"This was after the judiciary made a statement that they recognised mega-defamation awards as threats to freedom of expression, and that they would try to curb these awards in mega defamation suits," she said.

"Blogs are seen as the forefront of freedom of expression and are often used to complement and to give a fuller picture of what's going on," she added.

Both Ooi and Ahiruddin said their lawyers were in discussions and acknowledged that one of the options being considered was to apply to strike out the suits.

Ooi also did not discount the possibility of a counter-suit.

He said the case was a precedent in Malaysian history, "that an opinion space is subjected to be defined by a court of law, rather than by the people who breathe and read that opinion space".

Ahiruddin said: "The most obvious ramification is it would instill the sense of fear in bloggers. Even as a journalist, I lived in fear of defamation [suits from organisations]."

He said bloggers were at a disadvantage as they did not have the protection of an organisation.

Asked if name-calling could be defamatory, Randhawa said the law defined defamation as presenting as a statement of fact something which was untrue, and doing so with malice.

"Name calling, according to how the law is written, if it is an opinion, it cannot be defamation.

"There is definitely a difference between malicious name calling and fair comment."


Experts: Defamation laws apply to internet; protects all, not just individuals

PETALING JAYA (Jan 23, 2007): Bar Council president Yeo Yang Poh said defamation laws apply to all media, including online media and that they are meant to protect not just individuals but also corporations from being maligned by false allegations.

"The existing law does apply to all sides of the media, including online media and the Defamation Act is not meant to protect only individuals but also the corporate sector," Yeo said when asked to comment on accusations that the suit brought by The New Straits Times Press (M) against two bloggers was a case of intimidation by a large corporation against two individuals.

He stressed that anyone who feel aggrieved have the right to try and repair the damage done to their reputation.

"The important question is how to strike a fair balance between allowing freedom of expression and protecting the interest of individuals as far as their reputations are concerned," said Yeo.

"We need to look at how other progressive jurisdictions strike this balance. For example, in advanced countries like Canada, there is decreasing emphasis on monetary compensation but increasing emphasis on the rights of response or reply by the individuals who were defamed.

"This is not an easy task but we should allow maximum freedom of expression but at the same time [we should] not ignore the rights of individuals not to be defamed."

Universiti Kebangsaan Malaysia journalism lecturer Prof Dr Mohd Safar Hashim said: "Defamation is an act of bringing down one's reputation or belittling someone in the eyes of the public.

"In any case, if there are elements of defamation involved, all applicable laws can be used, irrespective of whether it involves the print or online media.

"There is freedom of expression but it is to the extent of what the law permits. Freedom here is as long as you do not infringe upon the law.

"Although Malaysia's Bill of Guarantee said there is no censorship of the Internet, it does not mean we are free to use it to defame anybody.

"But in the end, the court will determine whether it is defamation or not. The fact that it is taken to court does not mean there is defamation.

"And, the Defamation Act also gives protection to the accused through four types of defence, namely justifications, fair comments, privilege and unintentional mistake."

Malaysia bloggers sued news opinion