A. Introduction
The Federal Court recently by a 6-1 majority found Malaysia’s largest independent news site, Malaysiakini, guilty of contempt for comments posted by its readers for disparaging the judiciary. A fine of RM500,000 was imposed on Malaysiakini.
B. Background Facts
On 9.6.2020, the Chief Justice of Malaysia released a statement on the reopening of Malaysian courts following a national lockdown due to COVID-19. Malaysiakini republished the statement on its website in an article entitled “CJ Orders All Courts to be Fully Operational from July 1” (“Article”).
Shortly thereafter, some of Malaysiakini’s readers published several comments on the Article:
- Ayah Punya: “The High Courts are already acquitting criminals without any trial. The country has gone to the dogs”;
- GrayDeer0609: “Kangaroo courts fully operational? Musa Aman 43 charges fully acquitted. Where is law and order in this country? Law of the Jungle? Better to defund the judiciary!”;
- Legit: “This judge is a shameless joker. The judges are out of control and the judicial system is completely broken. The crooks are being let out one by one in an expeditious manner and will running wild looting the country back again. This Chief Judge is talking about opening of the courts. Covid 19 slumber kah!”;
- Semua Boleh — Bodoh pun Boleh: “Hey Chief Justice Tengku Maimun Tuan Mat — Berapa JUTA sudah sapu — 46 kes corruption — satu kali Hapus!!! Tak Malu dan Tak Takut Allah Ke? Neraka Macam Mana? Tak Takut Jugak? Lagi — Bayar balik sedikit wang sapu – lepas jugak. APA JUSTICE ini??? Penipu Rakyat ke? Sama sama sapu wang Rakyat ke???”; and
- Victim: “The Judiciary in Bolihland is a laughing stock”.
Upon being alerted by the police on 12.6.2020, Malaysiakini took down the comments within 12 minutes.
C. Malaysiakini’s Two-Fold Defence
Whilst admitting the offensive nature of the comments, Malaysiakini argued that it was neither the author nor the editor of the comments and consequently, it should not be held liable for third parties’ publications on its portal.
Secondly, Malaysiakini denied having knowledge of the comments until being alerted by the police.
D. The Majority Verdict
The majority of the Federal Court held that Malaysiakini had full editorial control over its platform and can fully decide what is publishable and what is not (unlike Twitter).
Given that Malaysiakini comprises of 25 staff and has a structured, coordinated and well-organised editorial team and reporting structure, the majority reasoned that “it is inconceivable that in such a structured system [Malaysiakini] had no notice of the impugned comments.”
Despite acknowledging that Malaysiakini’s news portal enjoys extensive readership and receives about 2000 comments per day, the majority was unpersuaded that Malaysiakini’s task of filtering comments was burdensome and instead opined that “the sheer volume cannot the basis for claiming lack of knowledge, to shirk from its responsibility”.
Furthermore, the majority rejected Malaysiakini’s public interest defence by citing Lord Hobhouse’s dicta in Reynolds v Times Newspapers Limited and Others that “[n]o public interest is served by publishing or communicating misinformation and certainly not offensive comments”.
E. The Dissenting Voice
Nallini Pathmanathan FCJ was the sole dissenting voice. Primarily, Her Ladyship held that Malaysiakini’s intention to publish the comments has not been proven beyond reasonable doubt because Malaysiakini did not have actual knowledge of the comments.
Given that the software “Talk” employed by Malaysiakini to filter banned words did not “flag” the comments, Her Ladyship opined that “neither the editors nor the administrators would be aware of the content of third-party comments including the impugned comments”.
In short, Her Ladyship emphasized that the legal framework in Malaysia only requires intermediaries to employ “flag and take down” policies to monitor third party comments, and not measures of prior restraints.
F. International Law: Active vs Passive Intermediary
To what extent does the majority’s opinion accord with international state practice on intermediary liability? Generally, liberal democracies recognise two categories of intermediaries – active and passive.
Passive intermediaries are those acting as mere distributors “akin to a public library or newsstand”. They are neither content creators nor publishers since they do not exercise editorial control over third-party content.
For instance, the Spanish High Court found YouTube to be a mere host provider and does not bear a positive obligation to monitor and supervise the lawfulness of the videos posted by its users. Despite having the “suggested video” function, the Court held that such function was automated based on an objective criterion and did not amount as an editorial control.
On the other end of the spectrum, active intermediaries are those which exercise a substantial degree of control over its users’ content. The test of substantial control turns on: (i) the economic interest that an intermediary has over its portal; and (ii) exclusive technical means to regulate its content.
For instance, eBay was deemed by the European Court of Justice to be an active intermediary due to its feature in allowing users to make listing offers on its website and utilized paid advertising provided by search engines to direct potential consumers to the offers.
In the landmark 2015 decision of Delfi v Estonia, the Grand Chamber of European Court of Human Rights (ECtHR) found that the Estonian court’s imposition of a fine on Delfi, an Internet news portal, for hate speech posted by anonymous users did not violate the freedom of expression. This was because Delfi retained exclusive power in deleting the comments posted by third-party on its platform, and had a direct economic interest in soliciting third party comments.
A year later, the ECtHR in Magyar Tartalomszolgáltatók Egyesülete v Hungary considered the intermediary liability of another Internet news portal for third-party defamatory statements. This time, the ECtHR found that the Hungarian court’s finding of liability flawed for failing to take into account relevant factors, particularly the intermediary’s system of registration, rules of moderation, and notice-and-take-down mechanism.
In short, under international human rights law, intermediaries cannot be held liable for unlawful third party content unless two conditions are fulfilled: (i) actual, positive, human knowledge of its manifest unlawfulness; and (ii) failure to expeditiously removed such content.
Actual knowledge is to be distinguished from virtual, automated computer knowledge of the publication of content. Furthermore, mere allegations of unlawfulness that are insufficiently precise or inadequately unsubstantiated cannot constitute knowledge of the unlawfulness. Common examples of manifestly unlawful content include hate speech, incitement to violence and child pornography.
Lastly, whilst there is no international consensus as to the time frame of expeditious removal, removal within 24 hours appears to be the emerging norm adopted by leading tech companies (Facebook and Twitter).
G. Conclusion
Based on Malaysiakini’s system, it is debatable whether Malaysiakini could be deemed as an ‘active intermediary’ possessing actual knowledge of the disparaging comments against the Malaysian judiciary before being alerted by the police. Furthermore, Malaysiakini’s removal of such comments within 12 minutes upon receiving such notification would be considered as ‘expeditious’ under international standards.
For now, some may worry that the Federal Court’s decision in Malaysiakini would cast a ‘chilling effect’ on free speech, and impose an onerous burden on online media companies to actively monitor third-party content on their platform. Perhaps the time is ripe for the Malaysian Parliament to enact or modify the laws on intermediary liability over online content in order to provide greater legal clarity.
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