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"Malaysiakini is liable for contempt of court over its readers’ comments, the Federal Court ruled today.
This does not extend to its editor-in-chief Steven Gan who was found not guilty of the same charge, said the apex court.
The seven-person bench chaired by Court of Appeal president Rohana Yusuf delivered the 6-1 majority decision with dissenting judgment by Federal Court judge P Nallini."
- Malaysiakini, Published on 19.02.2021 (https://www.malaysiakini.com/news/563548)
In recent days perhaps the most well-known, or rather notorious news in respect of a Federal Court Judgment comes in the form of the contempt proceedings initiated by the Attorney General Chambers against Malaysiakini, a news portal in Malaysia. It is ruled, as the foregoing paragraph indicates, that Malaysiakini is found liable of contempt over several comments made by its readers in its news portal which amounts to contempt of the judiciary system of Malaysia and was then fined a hefty sum of RM500,000.00.
This news is apparently of public interest, when the general public had within a short span of time responded to Malaysiakini's call for donation, and the sum of RM500,000.00 and more had been collected in a fundraiser by Malaysiakini. With such public interest in mind and with the publication of the summarised Majority and Minority Judgment of the Federal Court (which had since been made public and is shared in this article), below are a few key pointers to take note of in order to fully understand the rationale and controversy behind the Federal Court's latest Judgment.
What had happened
Malaysiakini had on 09.06.2020 published a news article relating to a Press Release by the Chief Justice which relates to the resumed operation of Malaysian Courts in light of Covid-19 pandemic. Within the same news article published in the news portal, comments were made by netizens which in essence, demeans/defames the Judiciary. Examples of which are as follows:- "The High Courts are already acquitting criminals without any trial. The Countries has gone to the dogs" "Kangaroo Courts fully operational? Musa Aman 43 charges fully acquitted. Where is the law and order in this country? Law of the Jungle? Better defund the judiciary!"
[No comments quoted herein reflects the views of our firm or the author of this article]
Whilst the comments are without basis, and even appalling, this kind of comments are no stranger to the Malaysian internet community, which often finds itself thriving in the comments sections of Facebook and other social medias.
The curious parts in this instant case was that the Attorney General Chambers had filed an application for contempt proceedings against Malaysiakini as a news portal and its editor, instead of the persons hiding behind their keyboards typing those comments. In another words, the view of the AGC was that Malaysiakini is liable for the derogatory comments made against the Judiciary.
It ought to be noted that Malaysiakini had admitted that the comments made were in fact contemptuous, and within 12 minutes of being made known of the said comments, Malaysiakini had taken down those comments immediately.
Federal Court's Ruling In a 7 judge panel, it is the majority ruling (decision by 6 judges, while 1 judge dissented) that Malaysiakini was indeed contemptuous.
One of the rationale behind this decision was that the Federal Court Majority Judges had opined Malaysiakini could reasonably be inferred to have knowledge of the contemptuous comments being made. Malaysiakini was said to be the owner of the news portal website, and had allowed its users to comment on the posts for discussion purposes. The Court had opined that although Malaysiakini had taken steps to prevent and safeguard offensive comments from being published at (through automated system of detecting vulgar words and preventing them from being reflected in the webpage), the safeguarding system is inadequate.
In another words, the Court had decided that Malaysiakini ought to have a system in place which automatically detect and prevent offensive comments from being published at all. The action undertaken by Malaysiakini in this case, which is to take down the comments after being notified of the contemptuous comments, is insufficient and unacceptable. Malaysiakini, by the very act of providing a platform for these contemptuous comments to be possibly made by others, is in contempt.
The Federal Court however, had decided that Malaysiakini's editor, Steven Gan, was found not to be in contempt. Minority Ruling by Federal Court Justice Yang Arif Nallini Pathmanathan
Aside from the decision by the Majority, FC Justice Nallini Pathmanathan had opined differently from the other judges and released a summarised form of her dissenting judgment through a press release.
In the said dissenting judgment, the learned FC Judge had denied the application of presumption under S114A Evidence Act 1950 in relation to publication. She opined that
not only was Malaysiakini not the publisher of the comments, but had also proved that Malaysiakini was not aware of the comments being made. She is satisfied that the actions undertaken to curb and take down the comments were in fact reasonable and adequate.
She further opined that Malaysiakini's news portal is recognised as an intermediary within the meaning of Communications and Multimedia Act 1998 and its prescribed rules. This connotes a legal implication that Malaysiakini can only be made liable of the comments when actual knowledge (as opposed to constructive knowledge) comes into play.
As a result of the above, she dissented and opined that Malaysiakini ought not be found liable for contempt.
Discussion
Ultimately, one major point of interest between the differing opinions of the Federal Court majority and minority is "whether Malaysiakini ought to have an automatic system in place that prevents all offensive statements", and in the case of the majority, the answer was in the affirmative.
With all due respect, it seems that the technological reality and viability was not considered in making this decision. The question is not just whether or not Malaysiakini ought to have an automatic system in place that filters all offensive statement, but also whether Malaysiakini could possibly have this system in place.
"Automatic detection of inappropriate search queries is challenging due to lack of sufficient context and syntactic structure in web queries, presence of spelling mistakes and natural language ambiguity. (...) Previous approaches [16, 20, 23, 24] have focused on identifying offensive language or flames in the messages posted on online or social networking forums such as twitter and facebook. They mainly rely on the presence of strong offensive keywords or phrases and grammatical expressions."
'Deep learning for detecting inappropriate content in text': Harish Yenala (https://link.springer.com/article/10.1007/s41060-017-0088-4)
It is not uncommon for websites to automatically censor vulgar words, especially the commonly used vulgar words which can be much more easily detected. In these cases, algorithms and technological designs are put in place that teaches the system to automatically detects commonly used vulgar words, eg. the "F" word. The system was not taught how to read the sentence as a whole to discern whether it feels offensive, but rather it detects individual offensive words and filter them automatically (as is usually how computers and technology operates).
But offensive statements (as quoted by the Majority Federal Court Judges) varies so widely and comes in so many different and, rather, creative forms. Referring to the impugned comments in this case, a "Kangaroo Court" as a phrase was in fact as unique as it is offensive.
In these cases, it is impossible to safeguard against all possible forms of contemptuous statements, especially ones that does not include individual vulgar words, or even one that is spelled mistakenly. As we have mentioned earlier, the filtering system in place was not meant to understand the context of the statement as a whole, but can only determine the vulgarity of each individual words. Yet, the majority view indicates that MK ought to have a proper system in place, and even indicates that the current system in place should have censored the impugned statements, is rather perplexing.
Secondly, the Court had also opined that Malaysiakini by virtue of constructive knowledge or knowledge inferred by circumstance, a publisher of the said impugned comments. The majority opines that S114A Evidence Act 1950 applies. In relation thereto, we need only refer to FC Justice Nallini's dissenting judgment on Communications and Multimedia Act 1998 as a reply.
In any event, it is clear even to the technological blind, that the users behind the keyboards are the ones who typed out the comments. It is also clear as to the point in time where actual knowledge had been imparted to Malaysiakini on the impunged comments. The majority's view had seemingly ignored these two facts in lieu of the technical applications of presumptions under Evidence Act 1950.
Effects of the Majority Decision
For a similar situation, we need not look further than the recent drama surrounding Former President Donald Trump and Twitter. The Former President had allegedly incited fear, anger and insurrection against the congress through his tweets, which ultimately led to the storming of Capitol Hill by angry mobs. Twitter, in the aftermath, blocked and deleted all tweets by the former President.
In that case, can twitter be held liable for the former President's offensive tweets? The author herein surely hopes not.
Similarly, Facebook could not be held responsible for Qanon conspiracy theorist's post. Youtube cannot be held responsible for videos of beheadings being posted. That is because their role, as a social media, is to allow users to have a platform to communicate and to socialise. They are only liable for their actions in providing the platform, not the opinions that were published in those platforms.
But the Majority's decision in Malaysiakini's contempt proceedings had imposed an improbable duty on all platforms (as it was not specifically mentioned, therefore it can possibly apply to all social medias and not just news portals) to vet, filter and regulate all comments and opinions that were intended to be published on their platforms. In another words, for all website that allows users to comment or communicate, a system must be put in place to check the context of all comments and communications before they are put through and published on the platforms. We do take note that the Judgment do not specify that this only applies to news portals, but instead the majority's decision had referenced that the impugned statement could reach a wide audience. That indicates that the Court opines that this duty is to be imposed on all platforms that allows comments to be read by an audience.
Wherefore, it also seems that the right to free speech can be affected. An opinion, no matter how distorted, should be allowed to be voiced as long as it does not infringe another's rights. That is the fundamentals of a right to free speech. Now, with this duty in place to check and filter each and every comments in all internet platforms, it also brings a question as to the threshold of ''offensiveness". To what extent does a comment is deem offensive? Does a comment which berates another for being an idiot fit the threshold of offensiveness? Offense at most times are subjective, and it is extremely arbitrary for platforms to decide what is offensive and what is not.
The Majority's decision can also mean that users whom are unsatisfied with a news portal could comment offensive statements on a news portal's comments' section. The user will go off scott free, whilst the news portal will be plunged into hot water.
At this juncture, all opinions are still based on the summarised versions of the Majority and Minority Judgment. We can only hope, that the full judgment, can provide clearer understanding as to the Court's rationale.
By Author Loh Cien Zen
Partner
23.02.2021
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