Malaysiakini is Malaysia’s oldest and most established online news site. In 1999, it blazed a trail, providing alternative news during a time when most media channels were tightly controlled by the ruling coalition. It has grown over the years, and now publishes in four languages, with several million unique visitors a month.
In February 2021, Malaysia’s highest court found Malaysiakini guilty of contempt of court for reader comments on its website that criticised the judiciary. This meant that Malaysiakini was found to have been disrespectful of and had undermined the administration of justice, because of third-party comments. The Federal Court’s decision was a majority decision. It fined Malaysiakini RM500,000 (~USD118,000), exceeding by RM300,000 what the prosecutors suggested.
What impact will this judgment have on internet intermediaries such as Malaysiakini who host user content on their website? And what does this mean for media freedom and freedom of expression in Malaysia as a whole?
On 9 June 2020, Malaysiakini published the Chief Justice’s announcement about the reopening of the courts following a movement control order that was precipitated by the Covid-19 pandemic. This happened to coincide with the withdrawal of 46 corruption charges against former Sabah Chief Minister Musa Aman, leading to his acquittal.
Five user comments using pseudonyms appeared under the Chief Justice’s announcement. They accused the courts of acquitting criminals without trial, and speculated whether the Chief Justice was corrupt. One used the term “kangaroo courts” and another called the judiciary a laughing stock1.
Three days later, the police contacted Malaysiakini about the five comments. The news portal removed them within 12 minutes of the notification.
Notwithstanding this, the Attorney General (AG) sought leave from the Federal Court to begin contempt of court proceedings against Malaysiakini and its Editor-in-Chief Steven Gan. This was granted on 17 June 2020.
In making out a prima facie case2, the AG was aided by section 114A of the Evidence Act. This states that as long as a person’s name appears on a website depicting themselves as the owner, host, administrator, editor or sub-editor, they are presumed to have published its contents. Ordinarily, “he who asserts must prove”. However, section 114A reverses the burden of proof. Hence Malaysiakini had to instead rebut the presumption, by proving it had not published the third-party comments.
In Malaysiakini’s defence, it stated it did not publish the third-party comments and had no knowledge of them until informed by the police, after which it promptly removed them. Therefore, Malaysiakini argued, it had no intention to undermine the administration of justice through these user comments.
By promptly removing the comments once notified, Malaysiakini also complied with the Malaysian Communications and Multimedia Content Code. The code establishes a flag-and-takedown regime, where content providers need not monitor subscriber activities, nor block access to their material, until notified of offending content.3 They are then given reasonable time to facilitate removal of the content. According to the Communications and Multimedia Act, code compliance is a defence to any proceedings arising from matters the code covers.4
Malaysiakini does not moderate user comments before they are published. It only allows registered users to post comments. Their terms and conditions contain the usual disclaimers and require users not to post illegal, abusive or harassing content. It utilises a filter which automatically deletes posts with certain words deemed to be offensive. Users can report any comment, which would then trigger a review by a Malaysiakini administrator.
Federal Court majority decision
The Federal Court judgement that found Malaysiakini guilty of contempt of court was a majority decision of 6-1.5 The majority held that Malaysiakini did not rebut the legal presumption of section 114A deeming them the publisher of the comments.
In an affidavit, Malaysiakini’s director affirmed that the news portal had no knowledge of the comments until notified. The Federal Court was unpersuaded and noted Malaysiakini’s “structured, coordinated and well-organised editorial team”.6 It drew the “irresistible inference” that at least one of them had notice and knowledge of the comments. “Mere denial” was thus held insufficient to claim ignorance.7
The court observed that Malaysiakini was a commercial entity, and received an indirect commercial benefit from the comments section. It also had a filter for removing comments with certain offensive words. Being the website’s owner and designer, it thus had full control over what was published or not.
The court therefore found that Malaysiakini had to assume the risks and responsibilities of facilitating such a platform and could not just pass on those risks to its subscribers. Importantly, the court said Malaysiakini “ought to have known” that by allowing readers to post comments, it exposes itself to the risks from the content of those comments.8 Given the editorial team’s experience, they were expected to have foreseen the kinds of comments the article would attract, especially because its release coincided with Musa Aman’s acquittal.
Federal Court dissenting judgment
A strong dissenting judgment was issued by Justice Nallini Pathmanathan, who found Malaysiakini not guilty of contempt.
She found that Malaysiakini successfully rebutted the presumption that it had published the comments, through the affidavit stating Malaysiakini had no knowledge of the comments until notification. As no evidence had been adduced to the contrary, that evidence should therefore stand.
The dissenting judgment also stated that intention was an important element of the quasi-criminal offence of contempt of court. This was especially because of the serious consequences of fines and possible imprisonment. As Malaysiakini was not the publisher of the comments, it could not have had the necessary intention that would establish it was guilty of the offence.
Justice Nallini observed that imposing an “ought to have known” test on intermediaries like Malaysiakini effectively meant they had to conduct “round-the-clock supervision” on third-party content to avoid liability. This, she said, was an untenable requirement.9 She acknowledged that Parliament had adopted a flag-and-takedown approach, and any change was more appropriately decided by the legislature, not the courts.
Furthermore, placing an undue burden on intermediaries for third-party material may result in a risk-averse approach and the removal of other non-offending material. This would dilute the Federal Constitution’s protection of freedom of expression.10
Internet Intermediary Liability: A Spectrum
To understand the Malaysiakini judgment and its implications, it is necessary to examine practices surrounding the liability of online sites that host third party content, known as internet intermediaries, and how they have evolved.
Forerunners such as the US and the European Union imposed regulations that provided “safe harbours” for internet intermediaries. This meant content providers like Amazon or eBay were exempt from liability for third-party content on their platforms if they removed infringing content within a reasonable time after being notified.11 This certainty in the law was important for facilitating the internet’s development as a tool for communication, trade, entertainment, and the like.
Use of the internet has multiplied since those regulations were first imposed. The immense reach and influence of social media giants such as Facebook have resulted in calls for internet intermediaries to bear more responsibility, especially regarding hate speech and online gender-based violence. However, more responsibility might result in overreach by hosts and lead to more removal of user content. This raises concerns over the arbitrary power that platforms such as Facebook wield in regulating online speech.
Court decisions globally reflect a spectrum of views on this issue.
The Dafra12 case in Brazil held Google liable for failing to remove parodies of a Dafra commercial that were uploaded on YouTube. Although Google removed the initial parody flagged by the motorcycle manufacturer, the court held it responsible for similar parodies uploaded by other users, under different titles. The court required all similar videos removed within 24 hours, even if it was a technical impossibility. It stated that a lack of a technical solution did not exempt a manufacturer from liability. If Google created an ‘”untameable monster’’, then it should be the only one charged for any “disastrous consequences generated by the lack of control” over its users.
Taking a contrasting view, India’s Shreya Singhal13 case held that internet intermediaries could not be held liable for third-party content until a court or appropriate government agency issued a formal takedown notice. It was held that “a competent public authority, and not private platforms, should sit in judgment when online speech is alleged to violate the law”. This would protect lawful expression from being removed by overzealous private enforcers.14
The two cases paint radically different pictures of the internet – one of an untameable monster that must be subdued, and another of a stronghold for free speech that must be protected. The former would require increased intermediary vigilance to remove offending content posthaste. The latter would require intermediaries to be cautious about what they remove and ensure any removals are justifiable.
The Malaysiakini judgment
Where does the Malaysiakini judgment sit along this spectrum?
The court’s metaphor of Malaysiakini potentially creating a destructive “runaway train”15 reveals the court’s desire for intermediaries to exercise increased control over their platforms. The implications for this view are serious. In holding internet intermediaries liable for third-party content, even before notification, the court is essentially requiring sites to carry out general and continuous monitoring. This would be onerous for a site such as Malaysiakini that receives an average of 2,000 comments daily.
The decision potentially also impacts other intermediaries such as small businesses that host social media pages, or e-commerce sites that allow user reviews. As long as a host has some measure of control over user content, they could potentially be liable for not removing or disabling offending content, even if they were unaware of such content.
The decision also empowers troll attacks, where users deliberately post offending content to stir up controversy, which may now attract liability.16
It is also worth mentioning that the offence of scandalising the court which was utilised in this case is an archaic British law that even in 1899, was described as obsolete,17 and was abolished by statute in the UK in 2012.
Other jurisdictions have severely narrowed this element of contempt of court so that it only applies when there is a serious risk of imminent harm befalling the administration of justice.18 A Head of State or the military threatening the judiciary, for example, might meet this standard, while random anonymous utterances on the internet, would not.
The Malaysian Federal Court intended its decision to serve as a “reminder to the public”. However, it is not the public who are most impacted by this decision, but intermediaries such as Malaysiakini.
Intermediaries, however, are affected unevenly. The decision does not affect hosts of unmoderated bulletin boards19 or messaging services like WhatsApp and Telegram, where far more contemptible and derisory remarks have no doubt been made.20 However, a host that attempts to create a more conducive environment for discourse by filtering out certain offensive words, and setting up mechanisms for reporting and review, would be impacted adversely.
It is perhaps to avoid this paradox that US law has a Good Samaritan clause. This clause exempts internet intermediaries from liability if they take action in good faith to restrict access to obscene, excessively violent and harassing material.21
Similarly, it would have been more proportionate to allow sites such as Malaysiakini some leeway through a flag-and-takedown policy, so that attempts to generate public discourse and debate are not unduly penalised. Doing this also ensures that sites do not need to consider disabling comments and shutting down discourse altogether, so as to avoid liability.
The Malaysian context
It is also important to bear in mind the Malaysian context when examining this decision. Freedom of expression is constitutionally guaranteed in Malaysia but a host of laws restrict that very same freedom and are utilised consistently to stifle dissent.
In arriving at their decision, the majority relied heavily on the Estonian case of Delfi,22 stating that the “facts bore semblance” to Malaysiakini’s case. While that may be so, the Estonian and Malaysian contexts are vastly different. Estonia is a considerably freer country, ranking 15th in the World Press Freedom Index to Malaysia’s 119th.23 It also declared internet access a human right 10 years before the United Nations.
Limitations placed on intermediaries in Estonia are tempered by the strong protection afforded to freedom of expression and media freedom in that country. A similar judgment impacts Malaysia disproportionately, given the lack of freedoms, and provides authorities with yet another tool against dissenters and government critics.
This will be especially felt by online news sites, already operating in a challenging environment due to Covid-19. And yet, a free media is needed more than ever, to hold the government accountable for its management of the pandemic and the economic hardships that have occurred as a result.
It is unfortunate that in this environment, the court, often the last bastion against government oppression, chose instead to hand down a decision that imposes further challenges on an already embattled media.
Confidence in the judiciary must of course be promoted and upheld. However, it remains to be seen how much this judgment helps promote respect for the administration of justice.
Indeed, despite the court’s intentions, it could be said that the judgment produced the opposite of what it intended to achieve. Within a mere four hours on the day of the judgment, the public demonstrated its ire by raising more than RM500,000 for Malaysiakini’s fine. It is thus questionable what the court’s judgement achieved not just for itself, but for freedom of expression and the country.
1 See Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor  2 MLJ 652, para 3.
2 Legal term meaning “at first sight” – the standard required when seeking leave to commence contempt of court proceedings.
3 The Malaysian Communications and Multimedia Content Code, Part 5, sections 10 and 11.
4 Communications and Multimedia Act 1998, sections 98 and 99.
5 Malaysiakini’s editor-in-chief Steven Gan was found not guilty as he was not presumed to be a publisher under section 114A of the Evidence Act, nor was he vicariously liable for Malaysiakini’s acts.
6 n.1, para 81.
7 The Federal Court relied on several cases that held that proof or intention of knowledge could be inferred from proven facts and circumstances. See n.1, paras 65 to 70.
8 n.1, para 131.
9 n.1, para 263.
10 n.1, para 264.
11 See US Communications Decency Act 1996, section 230 and Digital Millennium Copyright Act 1198, section 512; European Union E-Commerce Directive 2000, Art 14.
12 Superior Court of Justice, Fourth Panel, Google Brazil v Dafra, Special Appeal No 1306157/SP.
13 Shreya Singhal v Union of India AIR 2015 SC 1523.
14 See also the Argentinian Supreme Court case of Rodriguez et al v Google Inc et al  CSJN Case No 337: 1174 and the Indian Supreme Court case of Prashant Bushan & Anor, Re Suo Motu Contempt Petition (Crl) No 1 of 2020, SC.
15 n.1, para 76.
16 Some troll attacks are, in fact, funded by governments. In a 2019 report by the Oxford Internet Institute, Malaysia was found to have medium cyber troop capacity, with full-time teams that adopt consistent strategies to control the information space and manipulate social media.
See S Bradshaw & PN Howard, ‘The Global Disinformation Disorder: 2019 Global Inventory of Organised Social Media Manipulation’, Oxford Internet Institute, 2019.
17 McLeod v St Aubyn  AC 529, 561. The Privy Council’s view was that the offence was obsolete in England, but that “in small colonies, consisting principally of coloured populations”, committal for contempt of court attacks may be necessary to preserve the dignity and respect of the court.
18 See for example the Canadian case of R v Kyopto (1987) 62 OR (2d) where it was held that there must be a clear and present danger to the administration of justice for the offence of scandalising the court to be made out.
19 n.1, para 99.
20 The decision also distinguished Facebook, Twitter and Instagram, “where the platform provider does not offer any content and where the content provider may be a private person running the website or blog as a hobby.” See n.1, para 99.
21 Communications Decency Act, section 230.
22 Delfi AS v Estonia (Application No 64569/09) (2015) (ECtHR).
23 Reporters Without Borders, World Press Freedom Index 2021.