Contempt of court can be defined as an intentional disregard of the court’s authority. Citizen journalism is a kind of journalistic activity practiced by individuals with no professional training, by way of collecting, analysing, reporting and circulating the news and information.

​

In terms of citizen journalism, the most relevant type of contempt of court is ex facie, also known as contempt out of court. For instance, a publication that comprises an accusation of bias, prejudice or corruption, which attacks, abuses or calculates to lower a judge’s authority or to disrespect a court can lead to a contempt of court. 

​

Contempt of court is not only confined to a certain medium. However, it is most commonly committed by publication of written comments on newspapers, articles as well as broadcasting on television and radio. It also extends to words displayed on a poster or cartoon. 

​

The Law of Contempt of Court aimed to prevent the undermining of public confidence in the administration of justice. Judges are given the power for contempt of court as they are said to not be in a position to defend or reply to criticism against them.

​

However, some judges in Malaysia had deferred from this norm and had taken an opportunity to defend themselves in their judgements. For instance, in Yusri Mohamad & Anor v Aznan Mohamad, R.K Nathan J defended himself against ‘personal’ vilification by a Court of Appeal Judge in an unrelated case. 

​

In order to determine whether a criticism does amount to contempt of court, the court needs to strike a balance between the right to freedom of speech and the interest in protecting the administration of justice. To establish the balance, the conduct or criticism must be within the limit of reasonable courtesy.

​

In Attorney General & Ors v Arthur Lee Meng Kuang, the test adopted by the court was that the conduct must be within the limits of reasonable courtesy and good faith. The court also added that, in determining the limit of reasonable courtesy it should also take account of local conditions. 

​

In the case of Arthur Lee Meng Kuang, the court held that criticisms that are considered as within the limit of reasonable courtesy in England and other jurisdictions are not necessarily so in Malaysia. Therefore, the court held that : “any allegation of injustice or bias however couched in respectful words and even if expressed in temperate language cannot be tolerated, particularly when such allegation is made for the purpose of influencing or exerting pressure upon the court in the exercise of its judicial functions.” It is also irrelevant whether the criticism was well founded as it would still not be tolerated if it is merely intended to exert pressure upon the court. 

​

In a latest case of PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd, the court listed ‘what needs  to be presented in order to sustain a conviction for scandalising the court. These include, if: 

​

(a) ‘the statement in question poses a real risk of undermining public confidence in the administration of justice;

​

(b) the respondent had intended to publish the statement in question and 

​

(c) the respondent had not done so pursuant to fair criticism.’

​

There is no need to prove mens rea as long as there is an intention to undermine public confidence in the administration of justice or the Judiciary. It does not matter whether the author or the publisher intended the result. It follows therefore, that there is no defence for the author of such impugned statements to claim he did not know that the statement would have the effect of undermining public confidence or that he did not intend to erode public confidence in the administration of justice.

​

In the case of Peguam Negara v Mkini Dotcom Sdn Bhd & Anor, Mkini Dotcom Sdn Bhd and its editor-in-chief operated an online news portal (Malaysiakini) which allowed a publication of comments by third parties (their online subscribers), to respond to online news articles. The respondents had published an article titled ‘CJ orders all courts to be fully operated from July 1’ on their online news portal. Attached to it were comments by third parties (their online subscribers) scandalising the Judiciary, particularly, the Chief Justice of the Federal Court.

​

It was held that the application against the first respondent was allowed and the application on the second respondent was dismissed. The court cited that the contemptuous nature of the impugned comments in this application was beyond dispute and the principle that knowledge was a matter of inference. To avoid liability, the first respondent must have in place a system that was capable of detecting and rapidly removing offensive comments. The first respondent could not just wait to be alerted.Given the fact that the first respondent’s news portal enjoyed extensive readership and received about 2,000 comments per day, on top of that it had editorial control over the contents posted in the comments section. Hence, the first respondent must assume responsibility as part of the risks for facilitating a platform of such purpose.

​

In conclusion, citizen journalists may be held accountable for contempt of court if there is publication that attempts to scandalise the court. If  a person wants to create an alternate platform for publishing articles by citizen journalists and to promote freedom of speech, the person must first ensure that they have control over the third party’s comments as they will be held liable if the comments are considered contempt of court.