Simplified: The Malaysiakini decisions in the Federal Court — what the judges decided and why it matters

KUALA LUMPUR, Feb 21 — News outlet Malaysiakini on Friday found itself held liable and fined RM500,000 by the Federal Court for the contemptuous comments of five readers that were hosted on its website in June 2020.

With a seven-member panel at the Federal Court examining the case, there was a split decision as six judges found Malaysiakini guilty of contempt of court for facilitating the five subscribers’ comments, while one judge disagreed that the 21-year-old news site should be held guilty.

Here’s a brief chronology of events that led to the Federal Court rulings on Friday according to news reports and court documents, and a quick look at how and why the judges arrived at the decisions.

1. The facts

On the morning of June 9, 2020, the prosecution informed the High Court that it was withdrawing all 46 corruption and money-laundering charges against former Sabah chief minister Tan Sri Musa Aman, which then resulted in the High Court acquitting the politician. 

Later, on the same day past noon, news portal Malaysiakini published a news report titled “CJ orders all courts to be fully operational from July 1”, which was regarding a press release by the chief justice of Malaysia on the operation of courts in line with the recovery movement control order (RMCO).

Subscribers of Malaysiakini then posted comments under this news report in the comments section on its website, including the five comments which, among others, contained criticisms against the judiciary and the chief justice over Musa’s acquittal. This was despite the acquittal being due to the prosecution’s decision to drop the charges (which was explained later in the day by the attorney general as due to the unavailability of certain documentary evidence and witnesses).

According to Malaysiakini, comments can only be made by active paying subscribers, with such comments posted automatically on its website without any prior manual moderating, and with only a filter software to disallow comments from being uploaded if foul words from a list by Malaysiakini’s editors are detected.

After they are published, the system will detect any comments with “suspected words” and flag the comment to the moderator for review, while a peer-review process allows other readers to flag or report offending comments seen on the website which will then result in an editor reviewing and deciding whether to remove the comment.

Malaysiakini said no readers had reported these comments and the comments did not carry any of the “suspected words” that Malaysiakini’s filter software could detect.

Malaysiakini had said it was not aware of the five comments until June 12 at 12.45pm when it was alerted by the police as to investigations into the comments, with Malaysiakini’s editorial team then immediately reviewing the comments and removing these and other comments at 12.57pm on the same day. 

Malaysiakini’s editor-in-chief Steven Gan was contacted by the police on June 15. The following day, he gave a statement to the police as requested. Then, on June 26, Malaysiakini provided details of the five registered users who had made the comments to the Malaysian Communications and Multimedia Commission (MCMC) and the police in compliance with a June 24 request by MCMC. Malaysiakini has since permanently banned all five users.

On June 17, 2020, the Federal Court granted leave or allowed the attorney general to start contempt of court proceedings against Malaysiakini’s operator Mkini Dot Com Sdn Bhd and Malaysiakini’s “Ketua Editor” for facilitating the publishing of the five comments. The five comments had been deleted from the news site by then.

The attorney general said Malaysiakini knew or should have known that the words in the comments amounted to an insult against the judiciary and the chief justice of Malaysia, and threatened public confidence in the judiciary, as well as tarnished the dignity and integrity of the judiciary.

Malaysiakini’s lawyer urged the Federal Court to not hear the contempt of court case, arguing that the attorney general should have started the contempt proceedings at the High Court to allow the news outlet to have the option of appealing any rulings, instead of going straight to the Federal Court which is the highest court and where further appeals cannot be pursued. 

But the Federal Court on July 2 dismissed Malaysiakini’s application to set aside the leave decision and decided to proceed with hearing the contempt of court proceedings due to the five comments being on the judiciary as a whole, including the chief justice. The case was heard on July 13 with lawyers representing Malaysiakini and the Attorney General’s Chambers presenting their arguments.

In court documents, Malaysiakini and its editor-in-chief offered their unreserved apology: “The respondents regret the tone and tenor of the comments and unreservedly apologise to this honourable court and the judiciary as a whole for having unwittingly allowed for their airing. Neither of us had any intention of scandalising or undermining the judiciary in any manner whatsoever.”

On February 19, a summary of the majority judgement and a summary of the minority judgement were read out in the Federal Court. This means the explanation below is based only on the summaries, and not the full grounds of the judgement.

2. Majority ruling: Malaysiakini guilty, Steven Gan not guilty  

The majority judgement was delivered by Court of Appeal president Tan Sri Rohana Yusuf, with five other judges on the Federal Court panel agreeing — Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim, Datuk Seri Mohd Zawawi Salleh, Datuk Vernon Ong Lam Kiat and Datuk Abdul Rahman Sebli.

•           The five comments are in contempt

First, Justice Rohana noted that Malaysiakini admitted the five comments to be “offensive, inappropriate, disrespectful and contemptuous” and that it regretted the publication of the comments.

Here’s how Malaysiakini’s position was summed up: Malaysiakini and Gan said they were not the maker or publisher of the comments and had no role in the publication of the comments, and that they cannot be held liable for contempt as the comments were made by third-party subscribers on Malaysiakini’s website.

The Federal Court noted that the law is clear when it involves publishers of print media, but that it is not as straightforward when it comes to the legal liability of publishers and editors of new media where third-party postings are published online without the usual editing process, before proceeding to consider the blame in Malaysiakini’s case.

•           Malaysiakini presumed to be publisher of comments, court decides it had ‘knowledge’ of comments

The attorney general relied on Section 114A of the Evidence Act to presume that Malaysiakini is the publisher of the five comments. Among other things, Section 114A states that anyone who facilitates the publication of contents online is presumed to have published such contents, unless it is proven otherwise.

Agreeing with the attorney general’s use of Section 114A, the judges said Malaysiakini as the publisher is liable for the contemptuous comments made by the third-party subscribers.

Malaysiakini had sought to rebut the Section 114A presumption by saying it had taken all the necessary safeguards against liability from such third-party comments and that it had no knowledge of the comments. The Federal Court however ruled that Malaysiakini had failed to show it has “no knowledge” of the comments, based on the facts and evidence.

The Federal Court instead said the facts showed that Malaysiakini had knowledge of the comments, saying that Malaysiakini as the owner of the website has “full control” of what can be published, and must bear the risks that follow from allowing the online platform to operate in the way it had designed.

“Malaysiakini cannot be heard to say that its filter system failed to filter offensive comments, when in fact it deliberately chooses to only filter foul language, but not offensive substance,” Justice Rohana said. She added that the judges were “perplexed” by how the offensive comments had passed through the filter given how they were worded.

The Federal Court said that Malaysiakini’s three safeguards — including the filter system — had “failed and did not efficiently control or prevent offensive comments from being published”, before going on to say that Malaysiakini cannot clear itself of all liabilities and “irresponsibly shift the entire blame” on its third-party online subscribers.

“The truth is the postings were made possible only because it provides the platform for the subscribers to post the impugned comments. There being no two ways about it. In short, as stated in the application of the AG, the first respondent (Malaysiakini) facilitates the publication of the contemptuous comments by the third-party subscribers,” Justice Rohana said.

Saying that none of Malaysiakini’s editors denied knowledge of the five comments and given a well-organised editorial team and reporting structure, the judges said the inference is that at least one of the editors had knowledge of the comments, and concluded that Malaysiakini cannot deny knowing that the comments existed.

The Federal Court also said Malaysiakini must take on the responsibility for the risk of facilitating comments, and that it cannot cite the “sheer volume” of 2,000 comments posted daily by readers to shirk from such a responsibility.

(Malaysiakini had in court documents previously said it would not be possible to directly moderate comments before they are uploaded due to the volume, and that it also could not monitor every comment as they can be posted at all hours and on different days or even years after a news report has been published.)

“With the novel objective of encouraging public discourse on matters of public interest, Malaysiakini must at least ensure that the Malaysian public be exposed to balance discussions on the issues of public concern and not participate in demeaning and ridiculing the institution of the judiciary to undermine public confidence,” the judges said.

•           Constructive knowledge: The ‘should have known’ test 

“It would be expected for Malaysiakini to foresee the kind of comments attracted by the publication of the article on the acquittal of Musa Aman by the court following the withdrawal of charges, coinciding with the unfortunate timing of the press release by the chief justice.

“Members of the editorial team, in particular, must have been aware of the kind of materials published and would be able to foresee the sort of comments that it would attract, given their experience in running Malaysiakini for over 20 years,” they added.

The Federal Court also said Malaysiakini could not rely on the Malaysian Communications and Multimedia Content Code as a shield of defence against legal liability, before concluding that Malaysiakini had failed to show that it had no knowledge of the five comments to rebut the presumption of publication and held the news outlet guilty in contempt of court.

The Federal Court said Gan is not guilty of contempt, as the attorney general did not show proof that he falls under the Section 114A(1) presumption of being the publisher or facilitating the publishing of the contemptuous comments. This means that he escaped the potential sentencing of being jailed or fined.

The majority ruling also reminds Malaysians to exercise their right to freedom of expression within legal limits and use their discretion wisely when posting online, also urging Malaysians to not let social media change their behaviour as they are not known to be “rude, discourteous, disrespectful or ill-mannered”.

3. Minority ruling: Malaysiakini, Steven Gan both not guilty

In the seven-member panel, Federal Court judge Nallini Pathmanathan was the only one who decided that Malaysiakini was not in contempt of court, as she felt it had successfully rebutted the presumption under Section 114A of being the publisher of the five comments.

This was because she found that the evidence as a whole showed that Malaysiakini was unaware of the five comments and that there has been no challenge against such evidence, further stating that Malaysiakini as an online content service provider would only be presumed to be a publisher if it has “knowledge” 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,” she said.

Justice Nallini also said the content code only attaches liability to internet intermediaries such as Malaysiakini as a publisher from the time it became aware of the existence of third-party comments, with a “flag and takedown approach” as soon as they become aware.

The judge said it would be untenable to suggest that Malaysiakini is bound to take steps from preventing such comments from appearing on the site given that the comments can be posted at any time. She then noted this would otherwise mean that Malaysiakini and all other intermediaries with a comments section, “including Facebook and Twitter users”, would have to provide supervision day and night.

Noting that Malaysiakini took down the objectionable content within 12 minutes of being alerted, Nallini described it as an “immediate response” which demonstrated Malaysiakini’s intention to not allow such contemptuous material on its website.

•           Constructive test: Ought to have known test not applicable, persons making comment should bear responsibility instead of Malaysiakini

Justice Nallini said the “ought to have known” test should not apply, as it would mean that an online news portal would be liable as soon as comments by third parties appear on its website, even if it removes such comments “because it will be caught by the test that it ought to have known and anticipated that comment before it could be posted”.

Such a test would effectively make an online intermediary liable for not taking steps to prevent the making of unlawful comments, which would not be in line with the objective of the Communications and Multimedia Act (CMA) of not permitting internet censorship, she said.

Citing the content code’s Section 4.1(b) and Sections 11.1, the judge noted that the content code also provides that the creator of online content has the primary responsibility, and that a provider which hosts internet content like Malaysiakini is not required to monitor the activities of its users and subscribers, or to block access by its users or subscribers to any material unless directed to do so by the complaints bureau.

The judge also noted the content code’s Section 10, which provides that in a situation where an internet content host is alerted to a user providing prohibited content and when it can identify the user, the host has two working days to inform the user to remove the content within 24 hours. The host also has the right to remove said content if the user does not do so.

“Finally, Section 98(2) of the CMA stipulates that compliance with the Code is a defence against a prosecution or action or proceeding of any nature whether in court or otherwise regarding a matter dealt with in that code. It is significant that Malaysiakini acted in compliance with the Code,” the judge said.

Unlike the majority ruling, Justice Nallini concluded that Malaysiakini was not the publisher of the five comments when they first appeared on June 9 as it had no knowledge of them then, and only had knowledge of said comments on June 12, after which they were removed within 12 minutes.

The judge said Section 114A does not apply to Gan and that he is not implicated under the facts of the case.

Concluding that both Malaysiakini and Gan did not publish the third-party comments, the judge said this means that it was not possible for them to have “intention to publish”, an element which must be proved beyond reasonable doubt to show that there was contempt of court under the category of “scandalising the court”.

Justice Nallini disagreed with the majority ruling’s approach of inferring that there was “publication” and “intent to publish” through the use of constructive knowledge test, saying the “you ought to have known” test cannot be applied against an online content provider who is not the author of the comments.

“It is after all the author who is the person who committed the primary offence. Malaysiakini is not the primary perpetrator. So, while the concept of ‘you ought to have known’ may be applicable to the primary perpetrator, it is neither sound nor sustainable in law to extend such an inference to a party once removed from the author or primary perpetrator.

“It becomes a fiction to maintain that Malaysiakini knew of the existence of the comments and chose and intended to publish the same,” she said, concluding that the attorney general failed to establish beyond reasonable doubt that Malaysiakini and Gan had the required knowledge of the existence of the third-party comments and deliberately intended to publish the comments.

“The respondents have, moreover, apologised unreservedly for indirectly being involved in the airing of these contemptuous third-party comments. Therefore, they are not liable in contempt,” she said, while also noting however that all online portals should be vigilant of the serious offence of contempt of court and act to prohibit any attempts to erode the confidence of the public in the judiciary.

The full summaries of both the majority and minority rulings can be read here. It should be noted, however, that these are not the full grounds of the decisions.

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4. No knee-jerk reactions, but why the Malaysiakini rulings are important

In explaining the Federal Court rulings based on the two sets of summaries read out in court, Malaysiakini’s lead counsel Datuk Malik Imtiaz Sarwar on Friday told reporters that the majority ruling now means that any news site that hosts a platform allowing comments must moderate such comments before publication to avoid liability, even if the content code of conduct actually allows a window of two days to take down the offensive material after it has been posted.

Noting that the Federal Court recognised that this case was a novel issue and unprecedented, and that there was uncertainty on how to deal with this issue, Imtiaz said: “Both the majority and minority took steps in their view to explore and understand how the legal principles apply to addressing this issue of third-party comment and liability. So I think we should all step back a bit, understand the thinking behind it, and then I think we will be able to better appreciate what the thinking is”.

“But snapshot, that’s what happened. The implication is that even though there’s no direct involvement, if you could have been involved and you could have taken steps to moderate but you didn’t, then you are culpable. So that may have a bearing on Facebook and Twitter, but as I said, we have to look at the judgments before we understand,” he said.

“The court was setting a policy position for the courts below in order to send a clear signal on how to treat this. The effect of it, I think that has yet to be understood on free press and so on.

But we must remember this is not a case about a journalist commenting or writing an opinion, it is about third parties leaving comments on a portal, so that’s an important point to take into account,” he said.

Imtiaz however urged against any “knee jerk” reactions to the summaries of the judgments, and said the full grounds of the Federal Court rulings would have to be studied.

“It is an important decision because it makes clear, any organisations that host sites which allow for third-party comments, what is expected of them. Before this judgement, we had no guidance; now we do. Whatever the feelings may be about the judgement, that is the law the Federal Court has clarified by a majority of six to one, and we have to respect that,” he said.

Asked how the Federal Court ruling in Malaysiakini’s decision would affect comments made by users on Facebook pages, he noted that the majority ruling had said Malaysiakini’s situation was different from a court case in India’s supreme court. 

In the case in India, a lawyer was found guilty of contempt for tweeting contemptuous remarks, but the Twitter account was found not guilty as the nature of such accounts is that there is no control over what is being posted. The Federal Court’s majority ruling had said: “We do not agree that Malaysiakini is similar to Twitter account. Malaysiakini has full control on what is publishable and what is not.”

With the Federal Court distinguishing or saying that Malaysiakini’s case is different from that involving a Twitter account, Imtiaz said he would not be in a position to say how the Federal Court ruling would apply to social media sites Facebook and Twitter, based only on the summaries of the judgements.

“On the face of it, I would think there is basis to say that you could similarly take issue with postings left on Facebook and Twitter. But it’s a bit premature, so let’s wait for the judgments,” he said to reporters.

5. Target achieved

With the prosecution seeking for a RM200,000 fine and Malaysiakini suggesting a nominal fine of up to RM30,000, the Federal Court eventually decided to fine the news outlet RM500,000 with the amount to be paid by next Wednesday.

Amid messages of solidarity from civil society groups and expressions of concern from the foreign missions of US, UK, Canada in Malaysia over freedom of expression and media, Malaysiakini managed to raise more than RM500,000 within hours of the launch of its fundraising campaign.