_edited.png)
Written by Teo Tze Jie
Case Facts
Mkini Dotcom Sdn Bhd ('the first respondent') and its editor-in-chief ('the second respondent') had published on their online news portal ("MalaysiaKini") an article entitled 'CJ orders all courts to be fully operational from July 1'. Attached to the article were comments by third-party online subscribers scandalising the Judiciary in general and the Chief Justice of the Federal Court in particular ("the impugned comment"). Consequently, the Attorney-General ("the applicant") commenced committal proceedings against the respondents for committing contempt of court.
Issue of the law
Can the respondents be deemed the publisher of the contemptuous comment pursuant to S.114 A and be held liable for committing contempt of court?
Applicant’s Argument
The applicant argued that the respondents should be presumed under the law as the publishers of the impugned comment pursuant to S.114A of the Evidence Act 1950 since the respondents had facilitated its publication. Given the presumption and the contemptuous nature of the alleged comment, the applicant contended that the respondents are prima facie guilty of contempt of court. There is no requirement to prove an intention to publish on the part of the Respondents.
Respondent’s Argument
The Respondents argued that they should not be assumed responsibility as they had no knowledge of the impugned comment, and the impugned comment was not, in any event, originated and authored by them. Furthermore, the Respondents relied on the Malaysian Communications and Multimedia Code and contended that they were not required to monitor the activities of users and subscribers until being prompted by complaints.
Decision of the Federal court
Liability of the first respondent
i. The Federal Court held that the contemptuous nature of the impugned comment is beyond dispute and that the first respondent was presumed to be the publisher of the impugned comment pursuant to S.114A(1) of Evidence Act 1950 ("S.114A of EA) since it represented itself as the host of the publication. Notably, the court has highlighted that the presumption in s 114A is one that can be rebutted on a balance of probabilities.
ii. The court ruled that the first respondent had failed to avoid liability due to their omission to place a system capable of detecting and rapidly removing offensive comments.
iii. Court by considering that firstly, the first respondent's news portal is a commercial entity that enjoyed extensive readership and secondly, the fact that they had editorial control over the contents posted in the comments section, held that the first respondent must assume responsibility for taking the risk of facilitating the platform. They could not simply escape their responsibility by claiming a lack of knowledge due to the sheer volume of comments.
iv. The court held that since none of the ten editors on the first respondent's editorial team denied knowledge of the impugned comment, there was an unavoidable inference that at least one was aware of their existence.
v. As such, the court decided that the respondent's explanation on lack of knowledge had failed to cast reasonable doubt. Therefore, they had failed to rebut the presumption of publication on a balance of probabilities.
Liability of the second respondent
S.114A could not be extended to the second respondent since there was no evidence that he was named as the owner, host, or editor of MalaysiaKini. As such, he is not liable for contempt.
Dissenting Judgement
Nallini FCJ applied the "actual knowledge" test and held that an online content service provider like the first respondent should not be made liable as a publisher since it was not aware nor consented to the existence and the contents of the impugned comment.
Since the first respondent was not the actual publisher of the impugned comments, much less it can be said that they had the requisite 'intention to publish', which was the foundational element for the quasi-criminal offence of scandalising the court contempt. As such, the respondents should not be liable in contempt.
Analysis
i. This case has delved into the unchartered territory of online intermediary liability, given that it is the very first judicial decision in Malaysia that examines the secondary liability of intermediaries over unlawful content published by third parties.
ii. It emphasises that the online intermediary that enjoys extensive readership and has editorial control over the third-party's comment must assume responsibility for facilitating such a platform.
ii. To avoid being held liable as a publisher of a third-party's unlawful comment, this case highlights that it is crucial for the online intermediary to implement adequate safeguards.