Freedom vs Responsibility: The Case of Whistleblowers

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The radical transformation in communication technology puts the user as the main entity of the platform called the social media. Anybody can be a social media platform user who is given the free reign to play a proactive role as an agent of entertainment, information and knowledge that is delivered in an interactive way among other users.

“The freedom to interact and exchange views and to spread ideas can be seen as a freedom without having to take into account the implication and also the impact to the users in terms of the legal aspect,” said Prof. Madya Dr. Norhayati Rafida Abdul Rahim, Head of Communication Programme, Faculty of Management and Leadership, Universiti Sains Islam Malaysia.

It is not unusual to see provocative views by netizens and users that create rousing environment by inviting feedback, comments and counter comments that can are easily accessible by the public on social media platforms like Facebook, Instagram, Twitter and Linkedin.

However, she explained that the Communication and Multimedia Act 1998 is promulgated with the aim of giving a set of monitoring guidelines that is based on creating a civil society that provides and shares quality and effective information, inculcates integrity and responsibility as well as to expand the national creative industry.

“But how far netizens and users are aware that their behaviour on social media platforms are governed by the Communication and Multimedia Act is a big question mark,” she added.

Of late, the issue of the protection of whistleblowers have come to the fore with rife discussions among netizens on whether writer Lalitha Kunaretnam is entitled to be accorded whistleblower protection for her disclosure and her articles aimed at Malaysian Anti-Corruption Commission (MACC) leadership.

This is in relation to the civil defamation suit brought by the Chief Commissioner Tan Sri Azam Baki against her for allegedly defaming his name, that of his family and the commission with her two part articles entitled, ”Business Ties Among Leadership of MACC: How Deep Does it Go?”

According to Prof Dr Nik Ahmad Kamal Nik Mahmood, lecturer of Constitutional and Administrative Law, International Islamic University Malaysia, the law is very clear when it comes to the protection of whistleblower.

“Protection under the law, The Whistleblower Act 2010, can only be invoked if the person makes a report to an enforcement agency. That enforcement agency may be the police, the MACC, a department of the ministry, any section or unit of a government department or even the local authorities,” he said.

“According to the law, the person who makes the complaint will be provided protection by safeguarding the identity of the person, whereupon the whistleblower’s information will be investigated by the relevant enforcement agency.

“They will also be provided immunity from civil and criminal action, and protection against detrimental action. Detrimental action can mean disciplinary action or prosecution of the person against whom the disclosure of improper conduct has been made,” he said, adding that the spirit of the law to encourage disclosure of information with regards to improper conduct and corruption.

However, the law does not cover those who openly discloses information in the public, for instance to the media and on social media platforms. In the case of Lalitha Kunaratnam, she cannot claim whistleblower status based on several criteria.

Prof Dr Nik Ahmad explains that a whistleblower is someone employed within an organisation who exposes the wrongdoing in that body.

“If a person openly exposes the information on social media, they cannot claim protection under the Whistleblower Protection Act as their identity is already revealed which will invite detrimental action, example, law suits, libel, defamation,” he added.

In this matter, Lalitha Kunaretnam had already revealed her identity willingly, and that action will further expose her to detrimental actions, which is beyond the scope of the law.

On the other hand, Malaysia’s constitution also protects citizens from defamation in which the person who feels aggrieved by the disclosure of information has every right to defend themselves.

Finally, the best place to channel grievances is the Court of Law. The writer of the article needs to stand by her writings just as any writer or journalists, and if they are bound by strict journalists ethics, the law is fair to her as it is fair to the party that feels defamed by her writing.