From 15th May 2020 till 15th June 2020, EMPOWER Malaysia organised an essay competition for aspiring writers aged 13 to 23 with the theme “The Freedom to Express Myself without Fear”. This is one of the top entries, a thought-provoking essay from Vinodh Pillai, aged 23.

Like many of my friends, I too thought journalist Wan Noor Hayati Wan Alias deserved what she got after she was charged in court for Facebook postings she made earlier this year that were a tad bit questionable. In one of the posts, she made reference to the supposed news of 1,000 Chinese nationals arriving in Penang. “Maybe if LGE gets (the virus), will it be an emergency,” she remarked, referring to former Penang chief minister and then-finance minister Lim Guan Eng, effectively jumping on the public fear bandwagon following news that COVID-19 likely originated from Wuhan, China.

I remember thinking at the time that there was only one view to have on the issue – that what she said was of poor taste and irresponsible and it was not a question of a journalist being censored or silenced for reporting the facts; she had perpetuated racist rhetoric and irresponsibly played on growing popular sentiment that the Chinese were to blame for the spread of the coronavirus, a scientifically and historically inaccurate statement that became clear as the months went by and community transmissions were slowly discovered and patients with no history of travel to China or close contact with someone who recently travelled there began getting infected.

So when someone asked me what my thoughts were on the case, I spewed out whatever my friends had told me and based on what I read from similar-minded individuals on Twitter: she should have seen it coming. But imagine my reaction when I was told that this was a freedom of expression issue, and regardless of what she said, Wan Noor Hayati was protected by international laws and declarations around free speech. I was flabbergasted. I always considered myself an ultra-liberal of sorts (to use a term that Anwar Ibrahim oft-uses) and so I believed and respected the right to free speech, even if I disagreed with what was being said. It’s like that popular saying: I disapprove of what you say, but I will defend to the death your right to say it.

I was aware that there are limits to free speech and freedom of expression. As it says in our constitution: freedom of expression is not an absolute right, and it is subject to certain restrictions such as if it is deemed immoral, going against public order, affecting national security or defamatory, for instance. Yet, I wonder how easy it would be to prove such instances. For example, could Wan Noor Hayati’s post about Lim Guan Eng really be seen as defamatory? Wouldn’t it be seen as more of a “compliment” for Guan Eng, since the post does allude to him being considered a Chinese emperor of sorts and that only if someone as powerful and influential as he could get infected will the matter be taken seriously? It could also be seen as appreciative and respectful of his position as a former state chief minister for the same reasons. A person should not be criminalised if she failed to express her views in a way that would appeal to everyone, or if she simply chooses not to.

Perhaps what Wan Noor Hayati wrote could be construed as being written in poor taste and with a racist and prejudicial slant. But what if she had no intention of spreading hate or stirring the hornet’s nest among the local Chinese community? Shouldn’t that be taken into account as well? According to a news report, Wan Noor Hayati stood firm on her posting prior to being charged. “This is a health issue, not politics. For me, it was a normal posting,” she reportedly said. “My view is a professional (view that) represents the concern of many”. How can we then say that she intended to be defamatory when making her posting, or that she wanted to sow racial discord, even if that was the unintended consequence? It’s clear to me that she was only airing her views, in her own way. And as much as I disagree with how she made her point, shouldn’t I be defending her right to do so?

Some might say that if harm is a direct consequence of a person’s comments and free speech, then that person’s freedom of speech must be rescinded somewhat. For instance, if a person makes a hateful comment against someone and that person ends up self-harming or taking their life, it is clear-cut that the commenter abused his right to free speech. He or she should not have the right to post on social media anymore unless he is closely moderated by peers or family members. But what purpose would this really achieve? Would barring someone with a history of online harassment from posting online stop them from airing out their hate in other forms of media? Would it truly help them heal and realise the consequences of their actions? What then is the point? Who really benefits from this?

This, I feel, is why the so-called harm test is recommended for instances of alleged online infringement; restrictions on freedom of speech and expression must be “proportionate” and no more than necessary in addressing the issue at hand. Basically, a public authority or oversight body “weighs” the apparent harm in order to demonstrate that whatever information that was portrayed was intended to mislead the public and did, in fact, lead to undermining a person or group’s reputation or privacy, or discrimination against specific groups or community on the basis of gender, sex, race, religion and so on. This would most certainly be a more constructive means of dealing with postings such as those Wan Noor Hayati was charged for in court. But perhaps some level of political will and awareness on the availability of a platform such as the harm test exists is needed first.

The right to freedom of expression must always be protected and upheld by anyone claiming to be championing free speech. The freedom to express oneself without fear or favour should not be confused with being absolute in its entirety; as they say, the best things in life don’t come free. Measures must be in place to address and more importantly determine if self-expression caused harm, what were its intentions and whether there was a direct impact of said expression on the public. Whether Wan Noor Hayati had it coming or not is not the right response to her case. Instead, it is whether it can be proven what her intentions were and whether her actions brought about harm. That is what we should be focusing on, not her postings.  

The views, opinions and thoughts expressed in this article are those of the author and do not necessarily reflect the views of EMPOWER Malaysia.

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