by Roger Chin
The Sabah Law Society (“SLS”) is concerned with the recent decision of the Federal Court inter alia holding Mkini Dotcom Sdn Bhd (“Mkini”) guilty of contempt of Court.
kini operates an online news portal known as Malaysiakini. Malaysiakini had on 09.06.2020 published an entirely innocent article entitled “CJ orders all courts to be fully operational from July 1”.
Articles on Malaysiakini, as is common with such news portals, features the ability for third parties to post comments on articles.
Unfortunately for Malaysiakini, irresponsible third parties had posted various defamatory and derogatory comments on the article, targeted at the judiciary.
The comments in question were doubtless derogatory and contemptuous of the Court. If those third parties were to be hauled up for contempt, the SLS has no doubt whatsoever that they should be found liable for contempt of Court.
The fact is however that there is little or no cause to believe that Mkini or its officers were the actual authors of the derogatory comments.
The SLS has had the opportunity to peruse the summary of decision of the majority of the Federal Court. It appears from the summary of decision that the learned members of the bench had also reached the conclusion that Mkini or its officers were not the actual authors of the derogatory comments.
Notwithstanding this, Mkini was found liable because of a presumption found in section 114A of the Evidence Act 1950.
In essence, this section provides that the owner or editor of a publication is presumed to be the publisher unless the contrary is proved. It was on the back of this presumption that the majority of the Federal Court found Mkini liable for contempt of Court.
With greatest of respect to the bench, this is a rebuttable presumption. The comments were removed by Mkini within minutes of being informed of the same, and there seems to be little doubt that neither Mkini nor its offers were the actual authors or publishers of the derogatory comments.
The majority of the Federal Court expressed its dissatisfaction that the comments were able to bypass Mkini’s speech filters.
The reality is that human ingenuity – even when employed for dubious ends – will always easily bypass automated text filters.
A further reality of the present information age is there will always be anonymous comments and means of hiding one’s identity.
A final observation is the sad reality that there are few people as brash and outspoken as anonymous persons on the internet, otherwise known as internet trolls.
As the appellate courts have been slowly embracing the internet and remote communication, these are realities that have to be accepted, and are extremely difficult to be policed.
The SLS is heartened to note that the majority decision of the Federal Court quoted Lord Denning that “We have to rely on our conduct itself to be its own vindication.”
In a similar vein, the SLS would also urge the bench to be mindful of the words of the American politician and lawyer Adlai Stevenson II who is reported to said, “You can tell the size of a man by the size of the thing that makes him mad.”
The majority decision of the Federal Court has the unfortunate effect of placing an onerous burden on online publishers to engage in a constant battle with and policing of their users.
The net effect will likely be a stifling of these publishers requiring strict policing, reviewing and editing of comments by third parties which can ultimately only lead to the curbing of freedom of speech.
The SLS would respectfully urge the judiciary to be cautious in its interpretation and application of section 114A of the Evidence Act 1950 and even better, that there be legislative reform to do away with this presumption and thus necessitating the need to prove the owner or editor of a publication be the publisher rather than shifting the burden of proof to prove the contrary.Roger Chin
Sabah Law Society