By Joseph Cheah
On 19th February 2021, the Federal Court has fined online news portal Malaysiakini for contempt of court over readers’ comments. Interestingly, the Attorney General had recommended a fine of RM200,000 only, however the Court had imposed a fine of RM500,000 instead.
The Facts:
On 9th June 2020, Malaysiakini had published an article on the acquittal of Musa Aman by the court. On the same day, Malaysiakini republished a press release by the Chief Justice as ‘CJ orders all courts to be fully operational from July 1’. The following readers’ comments were published as follow:
Ayah Punya kata:
The High Courts are already acquitting criminals without any trial. The country has gone to the dogs.
GrayDeer0609:
Kangaroo courts fully operational? Musa Aman 43 charges fully acquitted. Where is law and order in this country? Law of the Jungle? Better to defund the judiciary!
Legit:
This Judge is a shameless joker. The judges are out of control and the judicial system is completely broken. The crooks are being let out one by one in an expeditious manner and will running wild looting the country back again. This Chief Judge is talking about opening of the courts. Covid 19 slumber kah!
Semua Boleh – Bodoh pun Boleh:
Hey Chief Justice Tengku Maimun Tuan Mat – Berapa JUTA sudah sapu – 46 kes corruption – satu kali Hapus!!! Tak Malu dan Tak Takut Allah Ke? Neraka Macam Mana? Tak Takut Jugak? Lagi – Bayar balik sedikit wang sapu – lepas jugak. APA JUSTICE ini??? Penipu Rakyat ke? Sama sama sapu wang Rakyat ke???
Victim:
The Judiciary in Bolihland is a laughing stock.
Malaysiakini admits that the above comments are offensive and contemptuous to the integrity of the courts and Judiciary.
The comments first appeared on 9th June 2020. Malaysiakini had purportedly only realized the comments on 12th June 2020, after being notified by the Police. The comments were then taken down within 12 minutes.
Premised on the comments, the Attorney General brought a legal proceedings against Mkini Dotcom Sdn Bhd (Malaysiakini) and its Editor-in-Chief, Gan Diong Keng (Steven Gan).
The Law:
The Attorney General relied on section 114A of the Evidence Act 1950 in bringing the case against them. Section 114A provides:
114a. (1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.
(2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.
(3) Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.
(4) For the purpose of this section—
(a) “network service” and “network service provider” have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998 [Act 588]; and
(b) “publication” means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer.
Essentially, this is what it means – If someone uses your Facebook account to post something offensive, you are presumed to be the person who posted it, unless you prove otherwise. The burden is on you to prove to the court that you did not publish the offensive post.
The Issue:
The issue before the court is novel one. The crux is whether Malaysiakini and Steven Gan are liable in contempt for comments made by their readers. In other words, are Malaysiakini and Steven Gan considered to be the ‘publishers’ of the offensive comments?
The Majority Judgment of the Court:
Malaysiakini inter alia argued the following:
- They are not the author or editor of the comments;
- They had nothing to do with the comments;
- They had no knowledge of the comments, until alerted by the Police;
- They had taken all necessary steps to safeguard from liability of comments by readers.
The Court disagreed with Malaysiakini’s defence. The reasons are as follow:
Inference of Knowledge
The Court concluded that as Malaysiakini’s corporate structure is coordinated and well-organized with impressive editorial team and reporting structure, it was inconceivable that it had not noticed the comments.
The Court also took into account of Malaysiakini’s failure in not bringing forward any editors to deny knowledge and/or explain how the comments had escaped their attention. Further, the purported rationale that voluminous comments everyday would have been difficult to manage and/or notice, was no excuse to absolve responsibility.
Further, the Court had expected that Malaysiakini must foresee the sort of comments that it would attract, having the Musa Aman article to coincide with the press release by the Chief Justice.
The Design of the Platform
Malaysiakini is the owner of the website and allow subscribers to post comments. It has full control on what is publishable. Therefore, it must also carry the risks for allowing such activities.
The Shortcoming of the Filter Software is no excuse
Malaysiakini utilizes a software known as ‘Talk’ – which screens comments against a list of banned and suspected words. The software may not be able to detect more complex concepts involving sentences and words taken together, would be deemed offensive.
The Court is of the view that by only filtering foul languages and not offensive substance, is not enough. Malaysiakini cannot argue to say that its filter system failed to filter offensive comments.
The Minority Judgment of the Court:
Out of the 7 judges, only Yang Arif Datuk Nallini Pathmanathan (“YA”) concluded that Malaysiakini was not the ‘publisher’ of the comments.
YA concluded that an online content service provider such as Malaysiakini shall only be considered as the ‘publisher’ only if it does have knowledge of the existence and content of the comments posted by the readers. Knowledge is a necessary element of publication.
YA also concluded that the provisions of the Communications and Multimedia Act 1998 and the Malaysian Communications and Multimedia Code prescribes that the liability is only affixed from the point it had become aware of the purported offensive comments. The proposition to supervise every comment day and night would be untenable.
YA found that as knowledge is a pre-requisite, the test of ‘ought to have known’ of the existence of such comments cannot be applicable. If such a test plays out, then online news portal is liable as soon as any offensive comment appears on the website and consequences shall be unavoidable, even if it had taken immediate steps to remove them.
Key Takeaways for Online Media Portals:
- If you continue to allow readers to post comments on your platform, you must monitor your readers’ comments on a regular basis.
- Consider a comment approval system, whereby comments will only appear once your administrator approves the same. In such a case, if any comments are taken to be contemptuous, you are more likely to be considered as the ‘publisher’ of the comment.
- Consider the type of materials to be posted on your website, whether it would invite offensive or sensitive comments.
- Consider employing software which would be able to filter offensive statements.