Malaysiakini, Liability and Free Speech

On May 28 2020, former President of the United States, Donald Trump, issued the Executive Order on Preventing Online Censorship(EO), which stated the President’s belief that online platforms are engaging in “selective censorship” is “harming national discourse and restricting Americans’ speech”. The EO was essentially aimed at S230 of the Communications Decency Act, which grants Internet companies immunity from liability for content posted by their users. The former President held on to the belief that Twitter was biased in its content moderation, removing posts arising generally from the right-wing, pro-Trump section of American society. More than an attack on the immunity it granted, the debate over S230 was on the limits of free speech and consequently, who and what determined this limit.

9 months later and half a world away, in the case of Peguam Negara Malaysia v MKINI Dot Com Sdn Bhd and Anor, the Federal Court of Malaysia distinguished Malaysiakini, a news portal from Twitter, a social media company. The Federal Court stated that a Twitter account has “no control whatsoever on what is posted.” On the other hand, Malaysiakini has “full control of what is publishable and what is not.“

The genesis of the case was a contempt of court charge over readers’ comments on an article published on court operations following the MCO on June 9 2020. The seemingly innocuous article was followed by comments from readers insulting the judiciary. The comments included statements alluding to corruption within the judiciary, calling to “defund the judiciary”. Though contemptuous and offensive, these comments were from third party sources. The comments were raised by the police and Malaysiakini subsequently took down the article. However, the Attorney General Chambers went on to file a case and the Federal court ultimately held that Malaysiakini was the “publisher of the impugned comments” and was thus liable for contempt of court.

The statute underlying this case was S114A of the Evidence Act, which states that “a person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or republish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.” The intention of the Act, based on the Hansard, was to combat cyber-crime committed anonymously and thus, the only way to rebut this presumption, is to prove that the account that posted certain contemptuous or impugned content was indeed hacked. Furthermore, the wide-ranging effect of the Act on news portals and websites was to ensure that comments are consistently monitored and moderated and provides an incentive for service providers to work with authorities to identify anonymous users who post impugned content.

In Stem life Berhad v Mead Johnson Nutrition (Malaysia) Sdn Bhd & Anor [2013], the High Court held that an owner of a website was liable for statements made by the users of the website. The was not rebuttable as it was held that the owner did not in fact have “no control” over the comments as was claimed. Due to editorial control of the comments section, moderation and censorship were expected and it was reiterated the Act was to ensure that the consequences of one’s anonymous actions online are not without repercussions.

In the Malaysiakini case, it was argued instead, that there was “no knowledge” of the comments at all, which was dismissed by the majority of the Federal Court. Using the test of constructive knowledge as well as the surrounding circumstances, it was inferred that Malaysiakini “ought to have known” about the comments. The sole dissenting judge, on the other hand, argued that the software used by Malaysiakini to moderate comments by screening banned words, Talk, only allows for an administrator to approve or reject comments after publication. Hence, there was no way Malaysiakini would have had knowledge of the comments at the time it was published.

The majority also considered the software’s recognition of foul language, but not offensive substances, as contributory to Malaysiakini’s liability. Interestingly, the judgement stated that the postings were made possible only because Malaysiakini provides a platform that allows its subscribers to post such comments. Though not entirely dismissing social commentary on news sites, the majority also emphasised Lord Hobhouse’s statement in Reynolds v Times Newspapers Limited and Others [1999], which states that “no public interest is served by publishing or communicating misinformation”, and later added the phrase “and certainly not offensive comments.” The court’s extension of the ambit of Lord Hobhouse’s statement, from misinformation to offensive comments, may be said to be setting a dangerous precedent, as the natural follow up question is “what is offensive?” and more importantly, “who decides what is offensive?”.

Judge Rohana Yusof stated that "while freedom of opinion and expression is protected by the federal constitution, it must be one within the bounds permissible by law. And the law does not tolerate contempt of court as it undermines the system of judiciary.” There are limits to the freedom of speech and expression and this is an internationally recognised and accepted fact. The concept of free speech, as suggested by the European Convention on Human Rights, is such that it is not entirely free, with the case of Lehideux and Isorni v France, stating that protection of one’s freedom of speech would not be extended to mis- and dis-information, such as the denial of the Holocaust. In Germany for instance, Twitter has to increase moderation to accommodate Germany’s robust neo-Nazi content ban.

Today, the court has decided that the right to free speech and expression is valid, insofar as it does not undermine our judiciary. More dangerously, the court has also decided that the extension of liability over comments derogating the judiciary to a news portal is also valid. This does not only limit the ambit of free speech, but also the spaces in which one may express themselves and their opinions. Henceforth, third party content on news portals and websites, which may even include opinion pieces, that are contemptuous in nature may lead to liability on the news portal itself. In the age of anonymising technology, this severely hampers a news portal or website’s ability to publish, encourage and retain social commentary.

Social commentary and the freedom to express one’s thoughts and opinions while debating about it with another is the backbone of the Internet and has allowed for the flourishing of social media companies. The line drawn in this case, between this freedom and the protection of the interest of public institutions, which ultimately extends the liability of contemptuous comments to the news portal itself, would lead to defensive practices from news portals and websites nationwide from allowing any form of social commentary at all, for fear of potential litigation. In the face of vague phrases such as “offensive comments”, the naturally easier position would be to block comments and commentary altogether. This would lead to a sanitised and controlled form of media, stifling the very culture of the internet.

Though the extension of liability to Malaysiakini is in itself troubling, the future implications of the judgement are worse. Without user-generated content, discourse and news, national websites and news portals would, for the most part, sustain a sort of heterogeneous content. Majority-endorsed views and opinions would be platformed, stifling any dissent, offence, opposition or criticism, regardless of its value. This reinforces traditional media and consequently, pervasive existing power structures, which are and will always be, stacked against those who hold views that do not subscribe to the norm.

The argument over S230 and limits of free speech still looms large, with Facebook announcing its own oversight board and Twitter testing out user-moderated content. However, over in Malaysia, the debate has leaned over to one side, revealing the fragile future of our social commentary spaces and consequently, the voices and opinions of the minority. We will soon find out the political and social ramifications of limiting social commentary and free speech.