By Hafiz Hassan

I share Tun Abdul Hamid Mohamad’s dismay at some of the responses to the Federal Court’s verdict of contempt against Malaysiakini.

The comments by its readers were admitted by Malaysiakini itself to be “offensive, inappropriate, disrespectful and contemptuous” and Malaysiakini regretted the publication of them.

The majority of the judges (6:1) was then satisfied that on the facts and evidence Malaysiakini has failed to establish that it has no knowledge of the publication. In law, knowledge could be inferred from surrounding facts and the court would be entitled to draw reasonable inferences “from a concrete situation disclosed in the evidence and how it affects the particular person whose knowledge is in issue.”

According to the majority:

“The facts as adduced by Malaysiakini … bear testimony to its knowledge. Ultimately, Malaysiakini is the owner of its website, publishes articles of public importance, [and] 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. It 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.”

I have written that the majority decision bears semblance to a decision in June 2020 by the New South Wales (NSW) Court of Appeal in Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 and as such the media should be aware of and seek to guard against the risks of liability for comments by third parties.

Following the Federal Court’s verdict, I sought out two friends who both teach Cyberlaw. Both referred me to the case of Stem Life Bhd v Mead Johnson Nutrition (M) Sdn Bhd & Anor [2013] MLJU 1582. In this case, the High Court referred to the principle of law gleaned from decisions of the courts in the United States (US), which is as follow:

“The question of discussion forums came before the courts in the second US case, Stratton Oakmont v Prodigy [where] the complaint was about a message posted to a discussion forum, hosted by Prodigy. The plaintiff sued Prodigy. On a preliminary point, the court held that Prodigy was liable as a primary publisher, as it had exercised some editorial control over the content of postings. It had, for instance, screened postings for offensive material and also held itself out as controlling the content of its bulletin boards. Prodigy … contracted out management of the forum to a third party, but that was held not to prevent liability arising.”

The High Court judge said that the principle ought to apply here in Malaysia but only to the defendant because “it edits, modifies and regulates the contents of its website and also assumes the responsibility of removing offensive or libellous publications from its website.”

Likewise, the majority has found that Malaysiakini has full control over what is publishable and what is not. Malaysiakini has failed to rebut the presumption of publication on the ground that it has no knowledge of the impugned comments, and has facilitated the publication of the impugned comments.

Simply put, Malaysiakini is a publisher of the contemptuous third-party comments and is rightly held liable.

The freedom of speech is a constitutional guarantee but not worded in absolutist terms. Even the much respected American jurist, Professor Archibald Cox had acknowledged 40 years ago that freedom of expression, “despite its primacy, can never be absolute. At any time unrestrained expression may conflict with important public and private interest.”

In the Malaysiakini case, the unrestrained expressions were contemptuous of the courts. Lest it be forgotten, the Federal Court, the Court of Appeal and the High Court (the Superior Courts) are each empowered by no less than the Federal Constitution to punish for contempt of itself.

In the case of AG & Ors v Arthur Lee Meng Kuang [1987] 1 MLJ 207, then Supreme Court Judge Mohamed Azmi said as follow:

“In this country, the need to protect the dignity and integrity of the [Superior Courts] is recognised by art 126 of the Federal Constitution and also by s 13 of the Courts of Judicature Act 1964. A proper balance must therefore be struck between the right of speech and expression as provided for under art 10 of the Federal Constitution and the need to protect the dignity and integrity of the Superior Courts in the interest of maintaining public confidence in the judiciary.”

The learned judge said further:

“Whether a criticism is within the limits of reasonable courtesy and good faith must … depend on the facts of each particular case. In determining the limits of reasonable courtesy the court should not however lose sight of local conditions.”

As such, and as Tun Hamid rightly said, the verdict should not be “spinned” as a shot at freedom of expression or freedom of the press in Malaysia.

It was a shot at unrestrained contemptuous comments which Malaysiakini is held liable for publishing them.

Hafiz Hassan is BebasNews reader.


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