Malaysiakini not responsible for 3rd party comments, says dissenting apex court judge

KUALA LUMPUR – Malaysiakini should not be held liable for comments by third parties published on their website, according to the sole dissenting judge in its contempt verdict today.

Datuk Nallini Pathmanathan said that her dissent was based on a few reasons, with the first issue being related to Section 114A of the Evidence Act.

Section 114A presumes that content on a website would have been published by the host itself.

But, according to Pathmanathan this is rebuttable, meaning Malaysiakini could, and indeed did prove it wrong.

“It is because the totality of the evidence points to the fact that at the time when comments were first visible to readers, the respondents were unaware of their existence and content of the same, until it was brought to their attention on June 12, 2020,” she said in her dissenting judgement.

She said that Malaysiakini could only be considered as a publisher if it had knowledge of the existence of the comments posted by third parties.

Pathmanathan referred to the Communications and Multimedia Act and the Malaysian Communications and Multimedia Code, which states that Malaysiakini would only have liability as a publisher when they are aware of the existence of third-party comments.

“This is in light of the evidence from the respondents that comments may arise at any time during the day or night and at any point in time in the future.

“That, to my mind, with respect, appears to be an untenable proposition. 

“And that is why Parliament in its wisdom adopted the “flag and takedown” approach that enables intermediaries to respond as soon as they acquire knowledge,” she said.

Given that Malaysiakini took down the comments in 12 minutes of being advised of the fact, she said this was a sufficiently immediate response that demonstrated their intent not to allow contemptuous material on their portal.

Pathmanathan rubbished the argument that Malaysiakini “ought to have known” about the existence of such comments.

She said, under such a test, an online news portal will be liable for such comments as soon it appears on the portal and is unable to avoid that consequence even if the comments were removed.

She said, such an approach went against the spirit of laws enacted by Parliament.

“In the law of contempt, constructive knowledge or the fact you ought to have known, cannot be applied against an online content provider who is not the author of the comments. 

“It is after all the author who is the person who committed the primary offence. 

“Malaysiakini is not the primary perpetrator,” she added.