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FEDERAL COURT PUTRAJAYA
PEGUAM NEGARA MALAYSIA – Appellant
Versus
MKINI DOTCOM SDN BHD & ANOR – Respondent
[Civil Application No: 08(L)-4-06-2020(W)]
The issues encapsulated in the topic of Court of Law in this case primarily revolve around the following key principles and concerns:
Liability for Third-Party Comments: The court examines whether an online news portal can be held liable for contempt due to third-party comments posted on its platform, especially when such comments scandalize the judiciary. This involves assessing the role of the platform as a publisher and whether it facilitated or merely hosted the comments (!) (!) .
Presumption of Publication: The legal presumption under specific statutory provisions that the platform is responsible for the publication of comments posted by third parties, unless proven otherwise, is a central issue. The court considers whether this presumption has been rebutted and the extent to which the platform's awareness or knowledge of the comments affects liability (!) (!) .
Requirement of Knowledge or Intent: A significant issue is whether actual knowledge or intent to publish is necessary to establish liability for contempt, or whether liability can be inferred through the act of facilitating publication. The court explores whether the platform's lack of prior knowledge can serve as a defense or whether the duty to monitor and act upon offensive comments is implied (!) (!) .
Role and Responsibility of the Media Platform: The court considers the extent of control, moderation, and editorial responsibility exercised by the online portal. It assesses whether the platform's measures to prevent offensive comments are sufficient or whether they demonstrate negligence or a failure to exercise due diligence (!) (!) .
Legal Framework and Principles: The court discusses the legal principles governing contempt of court, especially the importance of maintaining public confidence and the independence of the judiciary. It emphasizes that criticisms of the judiciary must be within lawful bounds and that irresponsible or scandalous comments threaten the integrity of the judicial system (!) (!) .
Balance Between Freedom of Expression and Respect for Judiciary: A core concern is balancing the constitutional right to free speech with the need to protect the dignity and reputation of the judiciary. The court examines whether the comments in question exceed permissible criticism and whether the platform's facilitation of such comments undermines the administration of justice (!) (!) .
Procedural and Technical Aspects of Liability: The issues also include whether procedural requirements, such as proper identification of respondents and adherence to legal processes, have been met, and how technical measures like filtering and moderation impact liability (!) (!) .
Responsibility and Due Diligence of the Platform: The court evaluates whether the online portal exercised reasonable care in monitoring, filtering, and removing offensive comments, and whether its response upon being alerted was adequate to avoid liability (!) (!) .
In summary, the court's deliberation encapsulates the complex interplay between legal responsibility, technological control, procedural compliance, and constitutional rights within the context of online publication and contempt of court.
JUDGMENT
Introduction
[1] The Honourable Attorney General of Malaysia (AG), brought this contempt proceeding against an online news portal, Mkini Dotcom Sdn Bhd (Company No 489718-U) (Malaysiakini) as the 1st respondent and its Editor-in-Chief, Gan Diong Keng (Steven Gan) as the 2nd respondent.
[2] To draw the chronological background to the Application before us, it all began when Malaysiakini published an article entitled "Musa Aman acquitted after prosecution applies to drop all charges" on 9 June 2020. In gist, it pertains to the acquittal of the former Sabah Chief Minister Musa Aman of 46 charges of corruption and money laundering. Coincidently on the very same day, the Office of the Chief Registrar issued a press release by the Chief Justice for all Courts to be fully operational from 1 July 2020, in line with the announcement that the country was moving into the recovery phase of the Movement Control Order. Malaysiakini republished from Bernama that press release as an article entitled "CJ orders all courts to be fully operational from July 1".
[3] Following that press release, the following comments (impugned comments) by third party online subscribers appeared on Malaysiakinis website on 9 June 2020:
(i) Ayah Punya kata:
The High Courts are already acquitting criminals without any trial. The country has gone to the dogs;
(ii) GrayDeer0609:
Kangaroo courts fully operational? Musa Aman 43 charges fully acquitted. Where is law and order in this country? Law of the Jungle? Better to defund the judiciary!
(iii) Legit:
This judge is a shameless joker. The judges are out of control and the judicial system is completely broken. The crooks are being let out one by one in an expeditious manner and will running wild looting the country back again. This Chief Judge is talking about opening of the courts. Covid 19 slumber kah!
(iv) Semua Boleh - Bodoh pun Boleh:
Hey Chief Justice Tengku Maimun Tuan Mat - Berapa JUTA sudah sapu - 46 kes corruption - satu kali Hapus!!! Tak Malu dan Tak Takut Allah Ke? Neraka Macam Mana? Tak Takut Jugak? Lagi - Bayar balik sedikit wang sapu - lepas jugak. APA JUSTICE ini??? Penipu Rakyat ke??? Sama sama sapu wang Rakyat ke???; and
(v) Victim:
The Judiciary in Bolihland is a laughing stock.
[4] A week after the impugned comments were published, on 15 June 2020, the AG by way of an ex parte notice of motion in encl 2 applied for leave to commence committal proceedings against both respondents for publishing the impugned comments.
[5] The ex parte application was heard on 17 June 2020. Notwithstanding it was an ex parte hearing, learned counsel for the respondents attended the court proceeding at ex parte hearing for two main reasons. First, to preserve the right of the respondents to apply for striking out of the AGs ex parte application. Secondly, to inform the court of representation made on behalf of the respondents to the AG, seeking for a withdrawal of this contempt application.
[6] Upon hearing the leave application, this court, being satisfied that a prima facie case had been made out, granted the AG leave to commence committal proceedings against the respondents, pursuant to O 52 r 3(1) of the Rules of 2012 (ROC). The AG then, on 18 June 2020 proceeded with the substantive application in encl 19 for committal orders against the respondents.
The Setting Aside Application
[7] The respondents in encl 22 applied to set aside the application of the AG. Enclosure 22 was supported by an affidavit deposed by the 2nd respondent (encl 23) citing the grounds that the AGs application failed to disclose a prima facie case as well as procedural non-compliance. We heard encls 19 and 22 together on 2 July 2020 and dismissed encl 22.
[8] In dismissing encl 22, we held that a prima facie case had been made out. And by virtue of s 114A of the Evidence Act 1950 , the respondents were deemed to have published the impugned comments.
[9] On procedural non-compliance, it was first alleged by the respondents t
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