Key takeaways

Online platform providers, news portals, website owners, social media platforms, providers of online chats and other online content providers may no longer exonerate itself from liability arising from the publication of third party content even though they have no control over and/or knowledge of the same.  Reliance on a quick 'takedown procedure' and compliance with the Content Code does not provide any shield of defence.

In depth

Background

In June 2020, the Attorney General of Malaysia commenced committal proceedings against an online news portal, Mkini Dotcom Sdn Bhd ("Malaysiakini") and its Editor-in-Chief, Gan Diong Keng pertaining to the comments posted by its online subscribers and readers on 9 June 2020. The alleged comments were posted on the Malaysiakini website in response to a Press Release by the Chief Justice, which was republished on the website. The application for contempt of court was made on the ground that the comments posted had scandalised the Malaysian judiciary, in general, and the Chief Justice of the Federal Court of Malaysia, in particular.

Overview of the judgment

The Federal Court decided as follows:

Liability of news portal

An online news portal can be presumed under the law as the publisher of any comments posted by its third party online subscribers or readers, by virtue of Section 114A of the Evidence Act 1950. This legal presumption is however a rebuttable one.  

An online news portal is the owner of its website, which publishes articles of public importance and allows subscribers to post comments to generate discussions. It has the ultimate power to design and control its online platform in any way it chooses. In doing so, it must carry with it the risks that follow from allowing the way its platform operates.

The safeguards adopted by Malaysiakini including its filter software which filters foul language failed to efficiently control or prevent offensive comments from being published. The Federal Court held that Malaysikini failed to rebut the presumption of publication because, inter alia:

• Malaysiakini is responsible for facilitating publication;
• Malaysiakini has in place an editorial policy which allows editing, removing and modifying comments;
• The editors of the news portal, including the Editor-in-Chief, review postings on a daily basis; and
• The impugned comments were only removed by Malaysiakini upon being notified.

The Federal Court therefore found that the charge for facilitating the publication of the impugned comments proved and Malaysiakini was therefore guilty of contempt of Court.

In her dissenting judgment, YA Datuk Nallini Pathmanathan held that an online content service provider such as Malaysiakini is a 'publisher' only if it does have knowledge of the existence and content of the comments posted by third parties.  If it does not, then it cannot be said to have published those comments because knowledge is a necessary element of publication. 

To decide otherwise would mean that an online content provider is affixed with liability as soon as the third party impugned content appears on the portal and it will be unable to avoid liability even if it removes the impugned content upon notification.  Such a consequence would not be in accord with the objective of the Communications and Multimedia Act 1998 ("CMA") where it is stated that nothing in the Act should be construed as permitting the censorship of the Internet.  This is further fortified by the Content Code which permits a 'take down procedure'.   Her Ladyship recognized that Section 98(2) of the CMA provides that compliance with the Content Code is a defence against prosecution or otherwise regarding a matter dealt with in the code and that Malaysiakini acted in compliance with the Content Code.

* * * * *

This client alert was issued by Wong & Partners, a member firm of Baker McKenzie International, a global law firm with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a "partner" means a person who is a partner or equivalent in such a law firm. Similarly, reference to an "office" means an office of any such law firm. This may qualify as "Attorney Advertising" requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome.