Peguam Negara Malaysia v MKini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652

Federal Court (Putrajaya)

Presumption of Fact in Publication

2.     On June 9, 2020, both Respondents published an article on Malaysiakini, their online news site, regarding the acquittal of the former Sabah Chief based on 46 corruption charges and money laundering.

3.     Then, on the same day, Malaysiakini published an article called “CJ orders all courts to be fully operational from 1 July 2020” which included the impugned comments from third-party online subscribers on the website.

4.     The impugned remarks scandalised including insulted the Malaysian Legal System, alleging the Chief Justice’s corruption based on the published article.

5.      On 15 June 2020, AG filed an ex-parte application for permission to initiate committal proceedings against both Respondents for publishing the impugned comments.

6.     On 17 June 2020, the AG was granted leave to commence the committal proceeding upon prima facie had been established during the hearing.

7.     On 18 June 2020, AG proceeded with the committal proceedings against the Respondents, and the Respondents applied for setting aside the leave.

2.     Whether the presumption of publication under section 114A of Evidence Act 1950 (Act 56) can be rebutted by the Respondents?

Ratios

1.     Publisher of impugned comments

(a)  Section 114A of Act 56 provides that-

“Presumption of fact in publication

114(1). 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 re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

(b)  The term ‘presumption’ had properly described that if the required basic facts or facts can be proven, it means that the presumed fact may be inferred to exist and be true.

(c)  This presumption will help to identify and prove the identity of an anonymous person involved in the internet publication. It intends to address the problem of internet anonymity.

(d)  It is a well-established legal principle that knowledge is a matter of fact. Consequently, knowledge can be inferred from the circumstances surrounding each event. Proof of knowledge is always a matter of inference which means that inference is always the best technique to demonstrate that someone is knowledgeable about something.

(e)  Hence, to infer the knowledge, the Court may therefore proceed in two stages. First, it must be proved that a particular person has opportunities for knowledge. Second, there is some evidence from which the Court can conclude that such a person has knowledge of nothing to indicate that there are barriers to acquiring the relevant knowledge.

(f)  In this case, the First Respondent, Malaysiakini has knowledge of the relevant facts and inferences and  is also aware that the objective of its website is to encourage its users to engage and participate on its online news portal.

(g)  Hence, the First Respondent depicted itself as the host to the publication based on section 114A (1) of Act 56, in which the First Respondent was presumed to have published the impugned comment. However, as the presumption of knowledge in section 114A of Act 56 is rebuttable, the First Respondent must rebut it on the basis of the balance of probabilities.

2.     Rebuttal of presumption of knowledge by the First Respondent

(a)  To rebut and deny the presumption of knowledge, the First Respondent contended three safeguards that had been taken before and after the publication of comments.

(b)  The first safeguard was its terms and conditions (‘T&C’) which warned and informed users that abusive posting violated any law or caused displeasing behaviour would be prohibited.

(c)  Second, the First Respondent installed a filter programme that disallows the use of specific bad language, which is also used to review third-party comments.

(d)  Third, the online news portal offers a peer reporting system that allows other users or readers to report offensive comments. Upon receiving the report, the editor will immediately examine and decide to remove the comments upon receiving the receipt of the report. Hence, the First Respondent has the authority to remove or alter the comments at its discretion.

(e)  Nevertheless, although the First Respondent has implemented three safeguards, the Federal Court ruled that the First Respondent must install a system that can quickly identify and rapidly eliminate inappropriate or offensive comments. As a result, the said precautions have been shown to be ineffective and do not effectively manage or prohibit the publication of inflammatory comments on the portals.

(f)  The Court further found that the First Respondent’s responsibility cannot fulfil its obligations under its T&C based on such self-serving caveats for its self-protection without considering harm to others.

(g)  In this instance, it strongly implies that the third-party internet subscribers’ contested comments were posted without restriction and were only removed after the police became aware of them.

(h)As a result, the First Respondent must accept responsibility for assuming the risk of providing a platform by exercising control over the materials submitted in the comment area. Hence, it also strongly implies that the impugned comments from third-party internet users were posted without any restrictions and were only taken down after the police were made aware of them.

(i)    Only third-party online subscribers can access the comment section at the bottom of the website which accompanies each news report published by the First Respondent.

(j)     The First Respondent, the director of Malaysiakini and the Second Respondent were the only ones who denied knowledge, while the First Respondent was fully aware of its duty in posting and publication. Therefore, the person in charge of that specific duty should be the one who can rebut and justify why he was unaware of the impugned comments prior to being informed on 12 June 2020.

(k)   The Federal Court held that the First Respondent had failed to rebut the presumption of publication because it has no knowledge of the impugned comments based on the balance of probabilities.

3.     Rebuttal of presumption of knowledge by the Second Respondent

(a)  In order to deduce the presumption under Section 114A (1) of Act 56, the Federal Court held that there is no evidence regarding the Second Respondent’s name appearing on the publication of the impugned comments.

(b)  There is no such evidence that the Second Respondent was identified as the owner or the host or the editor on the online news portal owned by the First Respondent, and nor is there any proof that he is the one who has the sole discretion to modify or remove any comments made by third parties.

(c)  The second Respondent does not fall within the definition of the publisher.

Whether the Respondents must fulfil the element of intention and/or knowledge based on the word ‘publication’ in section 114A of Act 56

1.     The general rule of section 114A of Act 46 presumes that Malaysiakini and the Second Respondent are the publishers of the impugned comments, therefore, the Respondents may rebut the presumption.

2.     It was submitted that the Applicant had made out a prima facie case for contempt of court against both Respondents based on the presumption of section 114A(1) of Act 56 with regard to the contemptuous nature of the impugned comments.

3.     Hence, the Court decided that there is no requirement for the Applicant to prove an intention to publish on the part of the Respondents.

2.     Freedom of speech cannot include the right to undermine the judiciary, as this will lead to anarchy in the administration of justice.