PUTRAJAYA, July 13 — The Attorney General’s Chambers today insisted that Malaysiakini must take responsibility for some readers’ comments that were considered to be in contempt of court.

The news website pointed out that it had no intention to publish comments to scandalise the judiciary and that it had removed the comments within minutes of being alerted.

These arguments were raised in the Federal Court’s hearing today over whether Malaysiakini’s operator Mkini Dotcom Sdn Bhd and its editor-in-chief Steven Gan had been in contempt of court over the news website’s hosting of five readers’ contemptuous comments.

The attorney general had applied to have Malaysiakini and its ketua editor cited for contempt over the five comments by the news portal’s readers.

Senior federal counsel S. Narkunavathy today argued that Malaysiakini was presumed to have published the readers’ comments as it had "facilitated” the publication of the comments, based on Section 114A of the Evidence Act.

Section 114A is a rebuttable presumption. (Under Section 114A, a person whose name, photograph or pseudonym appears on any publication depicting him to be the owner, host, administrator, editor or sub-editor, or who in any manner facilitates the publishing or republishing of a publication, is presumed to have published or republished the contents of the publication, unless it is proven otherwise. ) 

Narkunavathy went on to argue that the AGC did not need to show that Malaysiakini had intentionally published the readers’ comments.

"We say there is no requirement under the law for the applicant to demonstrate that the respondents intentionally published the comments,” she told the court.

While noting the various measures and safeguards that Malaysiakini had put into place to detect and block offensive comments from being published, Narkunavathy argued that Malaysiakini should still assume responsibility over readers’ comments as it had provided the platform for the comments to be published.

Narkunavathy noted the list of existing measures that Malaysiakini said it had, including terms and conditions that subscribers must agree to before they can post comments, a caution statement on the terms and conditions, a software or filter that detects banned foul words or profanities in comments which would be automatically blocked from posting, a system that automatically detects "suspected words” in posted comments for Malaysiakini to review, a peer reporting process where other readers can flag and report offending comments for the editor to review and decide to remove the comments, and a takedown policy.

While noting that Malaysiakini had said more than 2,000 comments posted daily on its website, she argued that this could not be used by the portal to avoid assuming responsibility over the readers’ comments.

"By providing the platform, we say they exercised control over the platform and they have to exercise responsibility by removing expeditiously any comments that are adverse. 

"The filters they put into place, including peer reporting did not work in this case, because they did not know of these comments until they were notified by police.

"What they put into place did not work to pick up the contemptuous comments. They themselves recognised the comments are contemptuous, so what they put into place did not work. 

"They cannot cite the volume, the sheer volume and the difficulty of resources, constraints to shirk the responsibility,” she said, adding however that the contempt of court proceedings against Malaysiakini was not intended to curb freedom of speech.

Narkunavathy accepted that actual knowledge of the contemptuous comments must be shown and later again stressed that it is not necessary to show intention for publication and again pointed to Malaysiakini’s role in providing the platform. 

She also argued that Malaysiakini cannot be said to be a passive publisher, asserting that it falls between the two extremes of a passive publisher and an active platform such as online forums.

File picture of Malik Imtiaz Sarwar speaking to reporters at the Federal Court in Putrajaya June 22, 2018. — Picture by Azinuddin Ghazali

What Malaysiakini argued

Malaysiakini’s lawyer Datuk Malik Imtiaz Sarwar, however, stressed on the need for the AGC to prove that Malaysiakini had actual knowledge of the contemptuous publication said to be scandalising the judiciary, and also said that the AGC has to show beyond reasonable doubt that Malaysiakini’s publication of the five comments was "intentional”. Imtiaz said the AGC had failed to prove intentional publication by Malaysiakini.

"One cannot have intended publication of scandalous material if one did not have actual knowledge of material,” he said.

"In my submission, I made the point that there must be knowing involvement in the publication. The mere fact that the host acts as a facility (for comments) which is automatically uploaded by artificial intelligence, filtered by artificial intelligence, with no knowing involvement of parties, knowledge cannot be presumed,” he later added.

Among other things, Malaysiakini previously said comments posted by readers who are subscribers would automatically be posted on its website, with only the automatic filter for foul words as a pre-publication filter and without any other filtering by Malaysiakini personnel before publication.

Noting that the AGC had accepted that there should be actual knowledge by Malaysiakini but that the AGC had argued that Malaysiakini should have known better and could have done better, Imtiaz however said that the facts do not show that Malaysiakini had knowingly published the five remarks.

Imtiaz also said that the contempt of court proceedings should not have been brought against Gan as he had not intentionally published the readers’ comments or facilitated the publication of such remarks, pointing out that Gan was only named by the AG due to his position as Malaysiakini’s editor-in-chief.

"We can see that Mr Gan has nothing to do with this other than being editor-in-chief… Vicarious liability is not basis for finding contempt against Mr Gan, neither is there strict liability. Even if this matter had gone further, it would only be in respect of the so-called publisher, the party that operates the website and not Mr Gan,” he argued, saying that Gan’s "misfortune” was holding the editor-in-chief post and questioned why the proceedings were not brought against any other persons.

Contempt of court can be punished by imprisonment or fine or both, with Malaysiakini having previously noted that there were no legal limits to the imprisonment period or the amount of the fine.

Imtiaz also said there was no need for the Evidence Act’s Section 114A to be invoked to presume Malaysiakini as the publisher as the company did not deny hosting and operating the news website, but pointed out the use of Section 114A would mean that the AG still needs to prove Malaysiakini had intentionally published the five comments.

"We accept that the respondent hosts Malaysiakini, we are not running away from that, the comments are there, we are not even disputing those comments are offensive. We are now at the narrow point of intention,” he said.

Imtiaz argued that Malaysiakini was a host of content, but said Malaysiakini should not be held legally responsible merely for being a mere facility that enabled the publication of comments when it did not have any knowledge of the contemptuous comments.

He said that the courts would otherwise be very busy citing contempt in multiple cases if intention to publish contemptuous remarks were not required to be proven, noting that this would have a "chilling effect on freedom of expression” and arguing that the balance with the Federal Constitution’s Article 10(1)(a) on the right to freedom of speech and expression would be maintained by requiring "intentional publication” in contempt of court proceedings.

The AGC’s Narkunavathy however argued that the circumstances of this case could be used to "infer” that Malaysiakini had the intention, insisting that Malaysiakini’s provision of the platform to host comments by third-party subscribers meant that it had to assume responsibility for the comments.

While noting that Malaysiakini had an alleged approach of exercising "little control'' over comments hosted on its platform as it did not want to censor freedom of speech, Narkunavathy argued that it still had to take on responsibility and accept liability.

As for Malaysiakini’s editor-in-chief being named in the contempt of court proceedings, Narkunavathy said that the editor-in-chief was named due to its position as the "number one editor” who is arguably responsible for the publication.

When it came to Malaysiakini’s removal of the offending five comments within 12 minutes of being alerted by the police, Narkunavathy said it showed that Malaysiakini were aware that the comments were contemptuous and ought to be removed.

The five comments were posted under a June 9 news report titled "CJ orders all courts to be fully operational from July 1”, with Malaysiakini having previously said that it was alerted at 12.45pm on June 12 about these comments when police contacted it to notify it of investigations regarding these comments.

In court documents, Malaysiakini said it was not aware of the five offensive comments previously as no readers had reported these comments and as the comments did not carry any of the "suspected words” that Malaysiakini’s filter could detect, further noting that the editorial team had immediately reviewed the comments upon alert by the police and removed the comments at 12.57pm the same day.

Based on court documents, it is understood that Malaysiakini had previously on June 26 provided details on the names and email addresses of the five readers who made the comments to the police and Malaysian Communications and Multimedia Commission (MCMC) with MCMC having requested for such details, and that Malaysiakini has since permanently banned the subscribers who posted the five comments.

Previously and also today, Imtiaz had highlighted that Malaysiakini and Gan had tendered their unreserved apology in court documents, where it is stated: "The respondents regret the tone and tenor of the comments and unreservedly apologises to this honourable court and the judiciary as a whole for having unwittingly allowed for their airing. Neither of us had any intention of scandalizing or undermining the judiciary in any manner whatsoever.”

Court of Appeal president Datuk Rohana Yusuf, who chaired the Federal Court’s seven-man panel today, said the decision will be delivered on a date to be fixed.

The other judges on the panel today are Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim, Datuk Seri Mohd Zawawi Salleh, Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat, and Datuk Abdul Rahman Sebli.

The AG had previously filed an application dated June 15 to initiate the contempt of court proceedings against Mkini Dot Com Sdn Bhd and Malaysiakini’s "Ketua Editor”, arguing in court papers that the comments contained words which the two respondents should have known were an insult to the judiciary in general and to the chief justice specifically, threatened public confidence towards the judiciary, insulted and tarnished the dignity and integrity of the judiciary.

The attorney general had in court papers claimed that Malaysiakini was considered to have published the comments by facilitating their publication, arguing that this amounted to a contempt of court due to the comments’ content and meaning, as well as due to the comments exceeding the limits of making sincere criticism and being a demeaning and unwarranted attack on the judiciary.

The Federal Court on June 17 granted leave to the attorney general to start the contempt of court proceedings against Malaysiakini and its editor-in-chief.

The Federal Court had on July 2 dismissed Malaysiakini’s application to set aside the leave decision and decided to proceed with the contempt of court proceedings which was held today.