My Say: Freedom of expression is not a licence to defame

This article first appeared in Forum, The Edge Malaysia Weekly, on November 5, 2018 - November 11, 2018.
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The press as the fourth estate

We all want informative and accurate news, especially on matters of public interest. This includes the proceedings and dark machinations in the corridors of power, which, in the past, have been kept hidden the public.

This responsibility to provide such news and information falls on the fourth estate — the press, or journalism.

It is supposed to complement a system of governance premised on the doctrine of separation of powers — the government is divided into the legislative, executive and judicial branches. This prevents the concentration of power and provides for checks and balances. Needless to say, it has become the construct upon which most modern nations are built upon throughout the world.

In the context of the spectacular results of the general election, we take cognisance of the significant role played by the media — not the mainstream though — but the alternative media in their reporting of hard and inconvenient truths about the Barisan Nasional (BN) kleptocratic government.


Press freedom under the new government

The new Pakatan Harapan (PH) government appears to have acknowledged the important role of the media. And it is willing to accommodate a greater space for press freedom as the country moves towards a more progressive and mature democracy.

But when we scrutinise and evaluate what has been and is being churned out by the media — notably some online media and platforms — we have good reason to be worried. We see too much lies, deception, manipulation, half-truths, spins and propaganda by some media practitioners, purportedly to serve certain hidden agendas.

In so doing, they are creating a lot of confusion and misleading the public, especially the segment that is gullible enough to swallow hook, line and sinker what is being fed to them without critically appraising its veracity and authenticity.

And when we include the work of mercenary bloggers and spin doctors on Facebook, Instagram, Twitter, WhatsApp, social chat groups and so forth, we have a scenario that is not healthy for the nation.

We know that the dissemination of fake news, black propaganda and disinformation is often done at the behest of people or groups with sinister and nefarious agendas.

Not surprisingly, many cases have landed in court for civil litigation and criminal prosecution. Among the many political protagonists, we can see that the most maligned by the media and bloggers are Tun Dr Mahathir Mohamad, Datuk Seri Anwar Ibrahim, Lim Kit Siang and Lim Guan Eng.

Mahathir, with his trademark statesman-like approach, prefers to take all of it in his stride and reach out to the people to explain his case. More often than not, he succeeds in winning over the people, much to the chagrin of his opponents and detractors.

But many others have to resort to the courts to get vindication. Anwar has won several high-profile defamation suits against the media, such as the High Court decision against Utusan Melayu (M) Bhd for stories that he was promoting homosexuality during an interview with BBC. The New Straits Times Press (M) Bhd has apologised to him and the late Karpal Singh for alleging that they had bribed judges and prosecuting officers.

New Straits Times and Berita Harian agreed to pay DAP secretary-general Lim Guan Eng RM130,000 in damages for three defamatory articles. The Kuala Lumpur High Court ordered Utusan Melayu to pay RM250,000 in damages to Lim Kit Siang for alleging that he had rigged party elections.

It would appear that Malaysia is now a haven for gutter politics, which is a shame, given that we pride ourselves in being a country with noble religious ideals and a multiracial community steeped in the good conduct and refined culture of the East.

Perhaps this is what prompted media adviser to the prime minister, Datuk A Kadir Jasin, to make the following observation at an international conference recently.

“The media practitioners need to use the media freedom given to them by the PH government to generate news reports that will enable the rakyat to think and explore critically. The media seems more interested in sensationalism to serve as fodder in the new media era …”

Perhaps that is putting things rather mildly. But we know for a fact that many are bewildered and exasperated at the state of affairs. Kudos to The Edge Malaysia and Sinar Harian, which even in a stifling media environment under BN, showed high standards of integrity and work ethics in their news reporting.


The upside, downside and striking a balance

For the good of the nation and people, we need to strike a balance between freedom of expression and the rule of law. The press, like the other institutions they are trying to check and balance, must also live up to their responsibilities by faithfully adhering to the highest codes of integrity and work ethics. Let not press freedom be a licence to defame, spread lies or deceive.

For example, even the European Court of Human Rights ruled recently that defaming Prophet Muhammad “goes beyond the permissible limits of an objective debate” and “could stir up prejudice and put at risk religious peace” and thus exceeds the permissible limits of freedom of expression. The media must avoid the inciting of racial and religious hatred.


Government has to lead but people have to wise up

The PH government, while keen to be seen as liberal and accommodating the right to freedom of expression, must not do so at the expense of the nation’s good. All rights have to be regulated and subject to certain constraints. Otherwise, law and order will be destroyed and the country will soon degenerate into anarchy and chaos.

The government must set clear directions and parameters through well-defined policies, laws and procedures. The Anti-Fake News Act (Afna) is now under review, after being turned down by the Senate, and will most likely end up with significant amendments before being tabled again in parliament.

Notwithstanding the fate of Afna, we still have enough laws to deal with the menace. While the government is expected to act fairly and judiciously in the enforcement of law and order, it must also be firm and decisive in handling the problem.

Last but not least, the public must wise up as well. They should embrace change brought about by new technology. With lifestyle changes come new challenges. Lies and deceptions are now becoming the staple diet in the new information age. They need to be more alert and critical in their evaluation of news and information to separate truths from lies. Let us build a new Malaysia that is knowledge-based, and with a critical mindset.

Wan Haron Wan Hassan is a senior practising lawyer and is active in civil society movements. He is a former treasurer of the Kota Baru Umno division (2004-2008).

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