Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
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The Federal Court of Malaysia held that an online news website which had published comments by its subscribers which criticized the judiciary was guilty of contempt of court. The website had republished a press release issued by the Chief Justice and subscribers had added critical comments to that post. Even though the website removed the comments within twelve minutes of the police informing the website of the comments, the Attorney General charged the website and its editor with contempt of court. The Court held that the website was liable for comments made on its website as it was deemed to be a publisher and its editorial structure demonstrated that it should have had knowledge of the comments.
On 9 June, 2020, the Malaysian online news portal, Mkini Dotcom Sdn Bhd, known as “Malaysiakini”, published a press release issued by the Chief Justice. The press release was titled “CJ orders all courts to be fully operational from July 1”. Five subscribers to the webpage commented on the press release, making comments about the Malaysian judiciary. These comments were: The High Courts are already acquitting criminals without any trial. The country has gone to the dogs”; “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!”; “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!”; “Hey Chief Justice Tengku Maimun Tuan Mat – How many MILLIONS has been swept away – 46 corruption cases – it vanishes at once!!! Are you not ashamed and afraid of God? What if you go to Hell? Still not afraid? Furthermore – pay back a little of the money – still let go. WHAT IS this JUSTICE??? Deceiving the people? Same as taking our people’s money???”; and “The Judiciary in Bolihland is a laughing stock.”
The police informed Malaysiakini about the comments and the news outlet removed the comments within twelve minutes. However, the Attorney General brought an application against Mkini Dotcom Sdn Bhd and its Editor-in-Chief Steven Gan in his personal capacity for contempt of court.
Judge Rohana binti Yusuf, PCA delivered the majority judgment of the seven-judge bench. Judge Nallini Pathmanathan, FCJ delivered a dissenting, minority judgment.
Makaysiakini acknowledged the content of the comments were contemptuous, but argued that they could not be held liable because they had not authored or edited the comments themselves, and so could not be said to have played any role in the publication of the contemptuous comments [para. 35].
The Court noted that cases of third party internet postings are not as legally straightforward as print media publications because third party internet postings do not pass through the usual editing process [para. 23]. Nevertheless, it held that Malaysiakini is presumed to be the publisher of the comments under section 114A of the Evidence Act which provides 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”.
The Court rejected Malaysiakini’s submission that the presumption was rebutted on the ground that it had no knowledge of the comments until alerted by the police, and that they had taken all necessary steps to safeguard from liability in respect of third parties’ comments. The Court held that Malaysiakini had failed to establish that it had no knowledge. With reference to Emmanuel Yaw Teiku v Public Prosecutor  5 MLJ 209, it added that knowledge, in law, can be discerned by reasonable inferences drawn from surrounding facts and took notice of the facts that Malaysiakini is the owner of its website, publishes articles of public importance and allows subscribers to post comments to generate discussions, and filters usage of foul words. Accordingly, the Court held that Malaysiakini “designs and controls its online platform in the way it chooses”, with “full control of what is publishable” [para. 78]. In addition, the Court remarked that Malaysiakini had a “structured, coordinated and well-organised editorial team” [para. 81], and held that it was an “irresistible inference” that at least one of the editors had notice and knowledge of the comments [para. 84].
The Court commented that the acquittal of Malaysian politician Musa Aman – which was the subject of at least one of the comments – was closely linked to the Chief Justice’s press release about the operation of courts. It held that Malaysiakini’s experienced editors should have foreseen the kind of comments that the press release article would attract [para. 86]. The Court held that the surrounding circumstances “strongly suggest” that Malaysiakini published the impugned comments “without reservation” [para. 75] and that, in any event, since Malaysiakini “facilitate[d] the publication” of the comments through its platform, it assumes risk of liability [para. 76-77]. It rejected Malaysiakini’s submission that its compliance with the Malaysian Communications and Multimedia Content Code shielded it from liability, holding that the Code must be interpreted in line with certain general principles, including the principle that content must not be “false”, “offensive”, or “in contravention [of] Malaysian laws” [para. 119-120].
In rejecting the analogy made between Malaysiakini and Twitter, the Court held that whereas Twitter is a “completely uncontrolled platform”, on the contrary Malaysiakini has “has control over who can post comments and has installed filter on certain prohibitive [sic.] comments” [para. 108].
However, the Court did not apply its findings against Malaysiakini to Gan as his name had not appeared on Malaysiakini, and so there were no facts that allowed the facilitation of the publication of the comments to be attributed to him under Section 114A of the Evidence Act. Therefore, the case against him was not proven beyond reasonable doubt, and he was found not guilty of contempt of court.
Finally, the Court acknowledged the “worldwide attention” that this case had attracted and remarked that the case should “serve as a reminder to the general public” that while “freedom of opinion and expression is guaranteed and protected by our Federal Constitution, it must be done within the bounds permissible by the law” [para. 142]. It added that Malaysiakini owed a duty to “ensure the preservation” of the reputation of the Malaysian public, preventing a reputation of being “rude, discourteous, disrespectful or ill-mannered” from arising [para.144].
The minority judgment would have held that the presumption under Section 114A of the Evidence Act was rebutted as at the time of the comments’ publication, Malaysiakini was unaware of them. The minority judgment examined Malaysiakini’s system for screening comments, which consisted of a software that screened comments against a list of banned or suspicious words and noted that the software system was not sufficiently advanced to manage more complex meanings presented by sentences and words taken together. In addition, the system only allowed a Malaysiakini administrator to reject comments after their publication. Having regard to these facts, the minority would have found that Malaysiakini was not aware of the impugned comments at the time of their publication.
The minority commented that an online news portal such as Malaysiakini would only become “liable as a publisher when it has knowledge or becomes aware of both the existence and the content of the subject material that is unlawful or defamatory, and fails to take down said material within a reasonable time” [para. 94].
The minority rejected the majority’s “constructive knowledge” approach, and noted that holding online intermediaries such as Malaysiakini liable for comments on their site, of which they had no actual knowledge, was not in keeping with section 3(3) of the Communications and Multimedia Act 1998 which states that “[n]othing in this Act shall be construed as permitting the censorship of the Internet”. The minority commented that the “ought to have known” reasoning underpinning an acceptance of constructive knowledge did not apply to Malaysiakini as the commenters, and not Malaysiakini, were the “primary perpetrator[s]”. [paras. 103 and 118].
In addition, the minority highlighted provisions of the Malaysian Communications and Multimedia Code that state that content creators (i.e. comment authors) are primarily responsible for online content, that internet content hosting providers are not required to block user access to material unless the Complaints Bureau directs them to do so, and that they need not monitor users’ activities [para. 100]. The minority observed that the Code supported Malaysiakini’s “flag and take down” approach, in which online intermediaries respond to published comments after acquiring knowledge of them.
In conclusion, the minority would have found that since neither Malaysiakini nor Gan had “published” the comments—having lacked knowledge of them—they must be taken to lack the requisite “intention to publish” the contemptuous comments. The minority would have found them both not guilty of contempt of court [para. 122].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By applying the “constructive knowledge” approach – and so removing the opportunity for online news portals to successfully plead a lack of knowledge as a defence – the Court opens those portals to liability in respect of the content of third-party comments. As the minority judgment points out, this approach and the apparent preference for pre-publication monitoring of comments could amount to censorship of the internet, and the consequences of the judgment may be that online news portals may attempt to avoid liability by reviewing comments before they are published. In addition, as the majority criticized Malaysiakini’s screening system for only screening for foul language and not other “offensive” content, online portals may change their policies to additionally screen for substantive content pertaining to the judiciary and political matters, thus amplifying censorship.
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