Malaysiakini is liable for contempt of court over its readers’ comments, the Federal Court ruled today.

This does not extend to its editor-in-chief Steven Gan who was found not guilty of the same charge, said the apex court.

The seven-person bench chaired by Court of Appeal president Rohana Yusuf delivered the 6-1 majority decision with dissenting judgment by Federal Court judge P Nallini.

Besides Rohana, the other panel members who formed the majority ruling were Chief Judge of the High Court of Malaya Azahar Mohamed; Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim; and Federal Court judges Mohd Zawawi Salleh, Vernon Ong Lam Kiat, and Abdul Rahman Sebli.

This is the first time Malaysiakini is being cited for contempt of court in its 21-year history.

On June 15 last year, Attorney-General Idrus Harun filed the committal application against the news portal.

In reading out the majority ruling today, Rohana said the Attorney-General has proven the presumption under Section 114A of the Evidence Act that Malaysiakini was the publisher of the impugned comments.

Section 114A (1) states that “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.”

Rohana said the news portal is liable under the law for the contemptuous comments by its third-party subscribers.

She explained that despite Malaysiakini’s contention that it is not liable for the comments as it has no knowledge of it due to having taken all necessary steps to safeguard from such liability, she said that the court could not accept this.

Rohana said that it is because, under the law, knowledge can be inferred from the surrounding circumstances of the case.

“Ultimately, Malaysiakini is the owner of the website, publishes articles of public importance, allows subscribers to post comments to generate discussions.

“It designs its online platform for such purpose and decides to filter usage of foul words and relies on all the three measures it has taken.

“In other words, the first respondent (Malaysiakini) designs and controls its online platform in the way it chooses. It has full control of what is publishable and what is not. In doing so it must carry with it the risks that follow from allowing the way its platform operates.

“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.

“Though we remained perplexed how these comments even passed its filter looking at the language of the impugned comments,” she said.

“We cannot accept such failed measures as a complete defence. Malaysiakini cannot unjustifiably and irresponsibly shift the entire blame on its third-party online subscribers while exonerating itself of all liabilities.

“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,” she said, adding that this amounted to Malaysiakini facilitating the publication of the comments.

Rohana pointed out that it is inconceivable for the impugned comments to have been published when Malaysiakini has a structured, coordinated, well-organised, and impressive editorial team and reporting structure.

She remarked that there was no explanation from any of the editors how the abusive comments escaped their attention.

She said that the irresistible inference is that at least one of them had notice and knowledge of the comments, therefore the news portal cannot deny notice or knowledge of the comments.

“Given the fact that the First Respondent (Malaysiakini) news portal enjoys extensive readership and receives about 2,000 comments per day, on top of the fact that it has editorial control over the contents posted in the comments section, the First Respondent must assume responsibility for taking the risk of facilitating a platform for such purpose.

“The sheer volume cannot be the basis for claiming lack of knowledge, to shirk from its responsibility.

“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 balanced discussions on the issues of public concern and not participate in demeaning and ridiculing the institution of the judiciary to undermine public confidence,” she said.

“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,” she added.

Rohana said the news portal misinterpreted the Malaysian Communications and Multimedia Content Code when it relied on the code to try to shield it from liability.

She however noted that the majority decision found it difficult to presume Gan as publisher per Section 114A, thus finding him not guilty of the contempt charge.

“No fact or evidence was adduced that the name of the Second Respondent (Gan) had appeared on Malaysiakini in such a way that can be attributed to facilitating the publication of the contemptuous comments,” Rohana said.

The Court of Appeal President conceded that the present case has attracted worldwide attention of news and media portals, organisations, as well as social media platforms.

She noted that the media has demonstrated their agitation and concern that this case will shackle media freedom and the chilling impact this case may have that will eventually lead to a clampdown on freedom of the press.

“Nevertheless, this unfortunate incident should serve as a reminder to the general public that in expressing one’s view especially by making unwarranted and demeaning attacks on the judiciary in the exercise of the freedom of expression as guaranteed and protected by our Federal Constitution, it must be done within the bounds permissible by the law. And the law does not tolerate contempt of the court as it undermines the system of justice.

“We Malaysians must use discretion specifically when it comes to posting on the internet as it rests in posterity online. The Malaysian public is not known to be rude, discourteous, disrespectful, or ill-mannered. Let not the social media change this social landscape of our nation.

“Malaysiakini too owes that duty to ensure the preservation of this social behaviour in the virtual world. This fact will go a long way to earn Malaysiakini as a responsible portal, for the purpose of public discourse,” Rohana said.

Minority judgment

Meanwhile, in the minority judgment, Nallini took an opposite view, ruling that the AG (Attorney-General) failed to establish beyond a reasonable doubt that Malaysiakini and Gan were liable for contempt over the readers' comments.

She said this is because it was not established beyond a reasonable doubt that the two respondents possessed requisite knowledge of the existence of the third party comments and deliberately intended to publish the comments.

She noted that Malaysiakini has succeeded in rebutting the presumption under Section 114A.

“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.

Nallini also pointed out that upon being informed of the objectionable comments, Malaysiakini took down the comments within 12 minutes of being advised about it.

“That is an immediate response, demonstrating their intent not to allow such contemptuous material on their portal,” she said.

Counsel Malik Imtiaz Sarwar appeared for Malaysiakini while senior federal counsel Suzana Atan acted for the Attorney-General’s Chambers.

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