If someone posts offensive comments on a site you own, you're likely to be responsible for it

If you’ve been on the Internet, you’re definitely no stranger to the multitude of ways netizens express themselves. It could range from the use of simple actions or gestures such as “liking” an article, dropping an angry face and escalate all the way to anger, profanity laden comments. 

Malaysians are definitely no strangers to profanity laden comments or comments loaded with insinuations; after all, we do rank quite highly on the list of cyberbullies. However, this article digresses. Most of us brush off sarcastic or aggressive comments because well, people should be allowed to speak their mind and no harm comes out of it...right?

A local online site was brought to court for comments left on its page

Most of you would already know this; sometime in June 2020, Malaysiakini and its editor in chief was brought to court by the Attorney General for contempt proceedings (briefly, contempt proceedings are initiated against those who have been disrespectful to the courts). What generated a lot of buzz for this particular case was the fact that Malaysiakini was brought to court for comments left on its page. Not only was Malaysiakini brought to court for something they did not do, but the Federal Court (that’s the biggest, baddest court in Malaysia for you, sirree) found Malaysiakini guilty of contempt of court. 

To amp up that spicy element of surprise, the comments in question which landed Malaysiakini in sup panas were only on Malaysiakini’s page for a period of 3 days (9.6.2020 to 12.6.2020). For most of us, that’s barely enough time to recover from a working week but it was enough time to land Malaysiakini in sup tambah pedas dengan cili tumbuk. 

Hold on; but how can Malaysiakini be found guilty for something they didn’t even do? Isn’t there some legal provision that it must be shown that you both committed the act and had the intention to do it?

Sometimes the law presumes that you did it

Generally, the law works on a whodunnit and the person who accuses must prove his accusations i.e he who asserts must prove. 

However, sometimes the law proceeds on a youdunnit so you bear the burden to prove that you did not do it. These occurrences are when the legal presumptions are in effect.

A Masterclass on legal presumptions; legal presumptions are basically when the law presumes that you’ve done X and the burden is placed on you to refute that presumption. 

At this point, you might wonder how is this even fair? 

We get it; the basic notion of fairness and justice is that you should never be blamed for something that you did not do. However, the reality of the situation is that circumstances can, at times, be a little more nuanced than that. 

Legal presumptions don’t exist because someone decided one day that it would be fun to turn the tides on the unsuspecting. They exist because, well, have you ever gotten a gut feeling that won’t go away and you know you’re right but the only person that can prove you right is the person that would not want to prove you right? That’s exactly why legal presumptions exist; at times, it’s easier to start on the flip side.

However, you might breathe a sigh of relief to find out that when a legal presumption is applied against you, it is not set in stone. The presumptions (are mostly) rebuttable. There are legal presumptions which cannot be rebutted but we won’t give you another heart attack for now. 

So the question is what happened to Malaysiakini?

Malaysiakini denied knowledge of the comments

We won’t go in the legal nitty gritty of the 84-page judgment delivered by the Federal Court in the Malaysiakini but to cut the fat; the legal presumption working against Malaysiakini is the legal presumption found in Section 114A of the Evidence Act 1950. Section 114A is pretty lengthy; in brief, it provides for a presumption of publication which can be invoked against a person whose name appears on the publication as the owner, host, administrator, editor or sub-editor of the publication. 

Essentially, if you own, say, a website and people leave comments which can lead to legal repercussions, you may be held to bear for it and if say you operate a website that publishes articles for the laymen to understand law and someone leaves a defamatory comment...wait hang on.

The section does sound a bit controversial. However, to understand how it came about, let’s skip back about 11 years. 

When it was first passed back in 2012, Section 114A garnered a lot of attention, both good and bad. The Malaysian Parliament decided that Section 114A was necessary to help deal with cyber crimes committed through the veil of internet anonymity. This was exactly the situation that Malaysiakini found itself entangled in; comments left on its page using pseudonyms. 

Coming back to (the more interesting) case at hand, Malaysiakini attempted to rebut the presumption by arguing that they had no knowledge of the comments. They also relied on the fact that they had taken safeguards to guard itself from comments by third parties, steps which are having its terms and conditions in place, having a filter for foul language and conducting peer review upon receiving complaints. They fleshed out this argument by saying that it was in accordance with practices adopted by major publishers across the world and that it would be impossible for Malaysiakini to moderate all comments received. 

The arguments sound logical amirite; how can we expect one entity to constantly monitor everything?

The Federal Court disagreed

In a plot twist worthy of the 21^st century vibes, the Federal Court noted the facts pleaded by Malaysiakini actually showed that they had knowledge of the comments. The Federal Court found that the objective of Malaysiakini’s website was to encourage users to indulge and participate in discussions online. The Federal Court pointed out:

“The right and freedom to comment according to the Respondents is a significant feature of its online media as it allows for discussions about topical matters of public interest which enable the readers to develop informed views, or opinions, on such issues.” – the Federal Court at paragraph [72]

The Federal Court held that in order to avoid liability, Malaysiakini must have a system that is “capable of detecting and rapidly removing offensive comments”. The Court held that Malaysiakini cannot wait to be alerted as the alerts may never come; it was insufficient for Malaysiakini to only rely on the safeguards it had in place.

If this author may attempt to put the Federal Court judgment in football terms, Malaysiakini, having created a safe space for netizens to comment, must play the offensive in fielding comments such as the ones in question instead of playing defence.

Notably, the Court also pointed out that Malaysiakini should have foreseen the kind of comments that would be posted as Malaysiakini had pubished an article on the acquittal of Musa Aman from his corruption and money laundering charges and this coincided with Malaysiakini republishing the press release by the Chief Justice for all courts to resume operations from July 2020 onwards.

Hence, the Federal Court found Malaysiakini guilty of contempt as the facilitated the publication of the comments. However, it did not find the editor in chief guilty as the Federal Court held that no fact or evidence was brought forward to show that the editor in chief could be said to be facilitating the publication of the comments. 

So at the end of the day…

What does this mean for freedom of speech?

Article 10 of the Federal Constitution provides that every citizen has the right to freedom of speech and expression. The Federal Court itself noted that the case involving Malaysiakini is under the watchful eye for various news and media portals and that concerns have been raised over the shackling of media freedom and the threatening of media independence. 

However, nothing is absolute and this extends to fundamental rights that we may wish to guard zealously. The Federal Court pointed out:

“Nevertheless, this unfortunate incident should serve as a reminder to the general public that in expressing one’s view especially by making unwarranted and demeaning attacks on the judiciary should not be made at one’s whims and fancies as which can tantamount to scandalising the Court. Whilst freedom of opinion and expression is guaranteed and protected by our Federal Constitution, it must be done within the bounds permissible by the law.” – the Federal Court at paragraphs [142]

Seven judges (the full number of judges for the Federal Court) sat to decide on this case. Out of the seven judges, six were in agreement whilst one disagreed. 

The lone wolf (lady) and her rationale

The dissenting Federal Court judge, Nallini Pathmanathan, found that first of all, when the comments were published, neither Malaysiakini nor its editor in chief were aware of the existence and contents of the comments. Without this knowledge, it cannot be said that Malaysiakini or its editor in chief published the comments because “knowledge is a necessary element of publication”. 

Judge Nallini held that to require sites such as Malaysiakini to take steps to prevent such comments from even appearing on their sites would mean that sites like this would have to provide constant supervision. Basically, it’s like being on night-time-baby-crying duty 24/7/365/x10 children. It’s just not sustainable. 

Given this, it would be more appropriate for a “flag and takedown” approach to be supported. Judge Nallini noted that it took Malaysiakini 12 minutes to take down the comments in question upon being notified of it. This is proof of its lack of intention to allow the comments on its portal. 

She also rejected the argument that Malaysiakini should have known the existence of such comments – she thought that if courts operated on that test, it would mean that every online news portal would be liable the moment comments like that appear on their sites, even if they were removed after. It’s like your teacher finding you guilty of cutting class the moment you step foot out of class even though you were just on your way to the toilet. 

In legalese, the concept of “should have known” is known as constructive knowledge. Judge Nallini took a different approach from the majority and held that constructive knowledge cannot be used for cases such as this one as the online content provider was not the author of the comments and not the main guy committing the crime, so to speak. 

Where do we go from here?

The judgment by the Federal Court is definitely food for thought (tasting platters for both the majority and dissenting judgment) but honestly, the majority and minority judgments don’t detract far from what we (should) already know. 

That is, rights are never absolute and are exercised in line with greater social considerations. For now, it should be interesting to see how this judgment would affect the commonplace act of leaving comments.