On 19 February 2021, the Federal Court of Malaysia by a split decision of 6 over 1 held that the 21 years old news site Malaysiakini is guilty of contempt of court for facilitating its subscribers to post insulting comments on the site. The facts of the case can be summarized below:
'On 9 June 2020, subscribers of Malaysiakini posted five comments to criticize the judiciary and the Chief Justice over Musa's acquittal. According to Malaysiakini, the comments do not trigger the filter for abusive language and flag the comments to the moderator for review. Hence, Malaysiakini is not aware of the comments until 12 June 2020 when they received a call from the enforcement officer. Malaysiakini then removing all five comments on the same day and permanently banned all five users.'
The majority of the public thinks that the case is having the effect of suppressing the freedom of expression. I agreed that the case might act as an important precedent on the matter, but to start with, freedom of expression does not and should not extend to abusive and insulting comments.
The second issue of the case that attracts criticism is Malaysiakini is not the one who makes the comments. The Federal Court by applying S114A of the Evidence Act states that anyone who facilitates the publication of contents online is presumed to have published such contents unless it is proven otherwise. I am of the opinion that the federal court might have considered the doctrine of vicarious liability to reach the decision. Vicarious Liability is a long-standing doctrine from Torts Law to hold the employer to be liable for their own employee's wrongful conduct in the course of employment. Looking from this perspective, the judgment is sound if the court is looking to impose an obligation on the news publisher towards its subscribers.
What is harsh, perhaps, can be noted from the dissenting opinion of the Federal Court Judge Nallini Pathmanathan stating that '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'.
Overall, I think the judgment is sound and fair. What are your thoughts?
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