PUTRAJAYA: The Federal Court has held that news portal Malaysiakini is in full control of what is publishable or not on its online platform, making it liable for comments posted by third parties on its website.
In a 6-1 majority decision, the court ruled that Mkini Dotcom, which runs Malaysiakini, was in contempt of court when five comments by readers, which attacked the judiciary, appeared in the comment section of an article published in June last year.
Mkini, which was named as the first respondent, was slapped with half a million ringgit in fines and has three days to pay from Monday next week.
Editor-in-chief and second respondent Steven Gan, however, was let off the hook on grounds that he did not facilitate the publishing of the offensive comments.
On June 17,2020, the Federal Court allowed Attorney General Tan Sri Idrus Harun’s ex parte application for leave to commence committal proceedings against Mkini and Gan over five comments on an article published on Malaysiakini on June 9,2020, entitled “CJ orders all courts to be fully operational from July 1”.
In the judgment yesterday, Court of Appeal president Justice Rohana Yusuf said Mkini contended that it could not be held liable for contempt as it was not the author or editor of the comments, which were posted by third party subscribers.
“In fact, they had no knowledge of the comments until they were alerted by the police, after which they promptly took the comments down, ” she said.
While the law in the case of a print media publisher is clear, the court said the legal position was not as straightforward when it came to publications by third party Internet postings.
“The legal liability of publishers and editors in this new media is blurred by the fact that these postings are made directly to the media platform by third parties without the usual editing process, ” said Justice Rohana.
She said the court also rejected Mkini’s defence of no knowledge.
“Ultimately, Mkini 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 purposes and decides to filter usage of foul words, ” the judge said.
The court added that the publisher “designed and controlled” the platform the way it chose to and had full control over it.
In doing so, it must carry the risks from allowing the way the platform operates, she said.
“Mkini cannot be heard to say that its filter system failed to filter offensive comments when in fact, it deliberately chooses only to filter foul language but not offensive substances.
“We remained perplexed at how these comments even passed its filter looking at the language of the impugned comments, ” Justice Rohana said.
Other judges on the majority were Chief Judge of Malaya Justice Azahar Mohamed; Chief Judge of Sabah and Sarawak Justice Abang Iskandar Abang Hashim; and Federal Court judges Justices Mohd Zawawi Salleh, Vernon Ong Lam Kiat and Abdul Rahman Sebli.
Meanwhile, Federal Court judge Justice Nallini Pathmanathan gave a dissenting view that Mkini did not have the requisite knowledge of the existence of the comments and the deliberate intention in publishing them.
Justice Rohana said the court had taken into account the apology made by both respondents in writing and orally to the court and their cooperation with the police.
“Having said that, the impugned statements had gone far and wide locally and internationally, the content was spurious and reprehensible in nature and involved allegations of corruption which were unproven and untrue, ” she said.
In a statement, the National Union of Journalists Peninsular Malaysia said the decision had a tremendous impact on discussions of issues of public interest as well as the media industry.
The Centre for Independent Journalism (CIJ) said portals would now be required to ensure that adequate safeguards were in place before publishing so that they would not be held liable.