Issue:
Whether an online platform provider is liable for third party comments which are offensive even though they had no knowledge of the same until notified and where the impugned comments were then promptly removed?
Judgment: The majority of the Federal Court delivered an affirmative decision
Introduction
- The contemptuous nature of the impugned comments in this application is beyond dispute.
- Freedom of speech cannot extend to a right to undermine the institution of the Judiciary which will ultimately bring chaos in the administration of justice.
- It is well-settled that the the publishers were directly responsible and liable for whatever they published in the print media. However, in the present case, the impugned comments were made by third party online subscribers and not the respondent, online platform providers.
- Generally, one cannot be held liable for causing harm unless he committed the harmful act.
Invocation of the presumption of publication under S114A of the Evidence Act 1950
- Nevertheless, given that the respondent, Malaysiakini is the host to the publication so by virtue of S114A(1) of the Evidence Act 1950 the respondent is presumed as the publisher of the impugned comments posted by its third party online subscribers.
- The intention of the enactment of S114A of the Evidence Act 1950 is to tackle the issue of internet anonymity by inventing this presumption of fact in the publication to facilitate in identifying and proving the identity of an anonymous person involved in the publication.
- After all, it was the obligation of the respondent to rebut this presumption on the balance of probabilities.
Whether the presumption is rebutted?
- It is an established legal principle that knowledge is purely a matter of fact so it can be deduced or inferred from the circumstances surrounding each particular event.
- Since the objective of the first respondent’s website is to encourage its users to indulge and participate in the discussion on its online news portal, so this also means that the first respondent facilitates the publication of the contemptuous comments by the third party subscribers. Hence, in order to avoid liability, the first respondent must have in place a system that is capable of detecting and rapidly remove offensive comments.
- In other words, Malaysiakini as the owner of its website, allows subscribers to post comments to generate discussion, it has full control of what is publishable and what is not. Accordingly, it must carry the risk that follow from allowing the way its platform operates.
- In light with the facts that the respondent has a structured, coordinated and well-organised editorial time, it is inconceivable that in such a structured system the first respondent had no notice of the impugned comments.
- Therefore, the first respondent has failed on a balance of probabilities, to rebut the presumption of publication on the ground that it has no knowledge of the impugned comments.
Whether the compliance of the Malaysian Communications and Multimedia Content Code (‘the Code’) afforded the first respondent a defence
- The overriding general principles and the underlying purpose of the Code should be viewed holistically to mean that the respondent must ensure that its users or subscribers were aware of the requirement to comply with the Malaysian law including, but not limited to the Code.
- Thus, the Federal Court found that the first respondent was in fact not in compliance with the Code and shield its liabilities.
