Are media platforms liable for comments left by third parties?

PEGUAM NEGARA MALAYSIA v. MKINI DOTCOM SDN BHD & ANOR [2021] 3 CLJ 603

• Mkini Dotcom Sdn Bhd (“Malaysiakini”) is an online news portal that allows for the publication of comments by way of online forum responses to news articles.

• Gan Diong Keng (“Mr. Gan”) is the chief editor of Malaysiakini.

• On the 9^th of June 2020, Malaysiakini published an article titled “Musa Aman acquitted after prosecution applies to drop all charges”.

• On the very same day, Malaysiakini published an article titled “CJ orders all courts to be fully operational from July 1”

• Comments (“impugned comments”) by third-party online subscribers were left on Malaysiakini’s website.

• As a consequence, the Attorney General of Malaysia (“AG”), by way of an ex parte notice of motion applied for leave to commence contempt proceedings against Malaysiakini and Mr. Gan.

• In civil procedures, ex parte is used to refer to motions for orders that can be granted without waiting for a response from the other side. Generally, these are orders that are made in an urgent situation.

• Malaysiakini applied to set aside the leave for contempt granted to the AG. The application was heard and dismissed.

• The issue that arises for consideration, in this case, is whether Malaysiakini and Mr. Gan are liable in contempt for impugned comments left by third parties.

• Malaysiakini admitted that the comments are indeed offensive, inappropriate, disrespectful, and contemptuous. However, Malaysiakini stated that they cannot be held liable for the acts of others, such as the third-party online subscribers that made the impugned comments.

• Malaysiakini explained that the 3 measures it had taken to safeguard itself from both pre and post-publication comments by third-party subscribers are by its terms and conditions warning, a filter program that disallows the use of certain foul words, and a peer reporting system.

The Federal Court allowed the application against Malaysiakini and dismissed the application against Mr. Gan on the basis that:

• Malaysiakini was deemed to be a publisher of the comments by virtue of the presumption under S114A Evidence Act 1950.

• To avoid liability, Malaysiakini must have in place a system that is capable of detecting and rapidly remove offensive comments. The safeguards adopted by Malaysiakini have proved to fail and do not efficiently control or prevent offensive comments from being published.

• To accept such measures as a complete defense will be to allow it to unjustifiably and irresponsibly shift the entire blame on its third-party online subscribers while freeing itself of all liabilities.

• The Federal Court is firm in their view that the Malaysiakini have failed to explain that they have no knowledge of the impugned comments.

• Freedom of opinion and expression is guaranteed and protected by our Federal Constitution, but it must be done within the bounds permissible by the law.