WHEN a local news portal (Mkini Dotcom) was convicted of contempt of court on Feb 19, but its editor-in-chief (Steven Gan) was acquitted, many were obviously puzzled. When the portal was fined RM500,000, many were shocked.
In an earlier contempt case (Arun Kasi in 2019), the sentence was a prison term of 30 days, a fine of RM40,000 (in default, another 30 days). I texted several friends, seeking comments.
A retired law professor from Terengganu said the sentence was "not excessive but on the high side", a politician from Ipoh said it was excessive since the attorney-general only asked for RM200,000, whilst an old friend from Penang felt the news portal "deserved" it.
Datuk Chamil Wariya, chief executive officer of Malaysia Press Institute (MPI), said since we did not have a Contempt of Court Act, there had always been a "cloud of uncertainty" on the law. He asked why no effort was made to bring to court the five persons who made the offending comments.
Trying to get my hands on the judgment of the court, I found two documents in cyberspace — the "official summary" of the majority (6:1) and the minority judgments.
FIRST, the majority judgment. The offending comments by the readers were reproduced in the judgment, and in my opinion, they undoubtedly scandalised the court and ought to be punished for contempt.
The court said (in paragraph 7) that it is satisfied "Malaysiakini failed to establish that it has no knowledge" (a double negative). The news portal "has full control" of what is publishable and cannot be heard "to say that its filter system failed to filter offensive comments when, in fact, it deliberately chooses to only filter foul language". It cannot accept "such failed measures as a complete defence".
Noting that the news portal had 25 staff members, the court said it was inconceivable "that in such a structured system, it had no notice of the impugned comments". According to the court, "the irresistible inference" is that at least one of them had notice and knowledge of these comments (this is constructive knowledge).
Holding that the news portal had failed "on a balance of probabilities to rebut the presumption of publication", the court found it guilty of contempt. However, with regard to the editor-in-chief, the court held that it has difficulty under Section 114A to presume him as a publisher.
SECOND, the minority judgment. In her dissenting judgment, Federal Court judge Nallini Patmanathan said neither the editors nor administrators of the news portal "would be aware" of readers' comments until " a suspected word" is detected by its software called "Talk".
She said this was part of the "flag and take down" policy practised by the company in line with the Malaysian Communications and Multimedia Code under the Communications and Multimedia Act 1998. But these measures can only come into play "after the comments have been published".
The evidence shows that neither the news portal nor the editor-in-chief were aware of readers' comments until they were brought to their attention on June 12 last year.
She said a "content service provider" becomes a "publisher" only if it does have knowledge of the existence and content of the comments posted by third parties. If it does not, then it cannot be said to have published those comments because knowledge is a necessary element of publication.
Having ruled that "knowledge is a prerequisite for publication in the context of contempt", she rejected the "constructive knowledge" test to determine whether the element of publication is made out.
For those reasons, she held that the news portal was not a "publisher" when the readers' comments appeared on June 9 last year, "because it had no knowledge of the same". It came to know about them on June 12, after which the comments were taken down within 12 minutes.
She emphasised an 'intention to publish' is an essential element of scandalising the court contempt (as held in Arun Kasi's case). This intention must be proved beyond reasonable doubt, a standard that has not been met in the present case.
To sum up, the court convicted the news portal of contempt of court because it had failed to rebut the presumption under Section 114A, and it had "constructive knowledge" of the publication.
In her dissenting judgment, Nallini insisted that there must be actual mens rea — the intention to publish and actual knowledge of the publication. With respect to the majority decision, I favour the dissenting judgment.
The writer, a former federal counsel at the Attorney-General's Chambers, is deputy chairman of the Kuala Lumpur Foundation to Criminalise War
