Monday, April 19, 2021

Contemptuous expressions and freedom of speech

Any business which maintains internet discussion forums should be aware of and guard against the risks of liability for comments by third parties.

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I am as dismayed as Chandra Muzaffar at the “utter lack of appreciation for the ethical foundation of the right of free speech” following the Federal Court verdict of contempt against Malaysiakini.

The comments by the readers of Malaysiakini were admitted by the online newspaper to be “offensive, inappropriate, disrespectful and contemptuous” and the online newspaper regretted the publication of them.

The majority of the judges (6:1) was then satisfied that on the facts and evidence Malaysiakini had failed to establish that it had no knowledge of the publication. In law, knowledge could be inferred from surrounding facts and the court would be entitled to draw reasonable inferences “from a concrete situation disclosed in the evidence and how it affects the particular person whose knowledge is in issue”.

According to the majority:

“The facts as adduced by Malaysiakini… bear testimony to its knowledge. Ultimately, Malaysiakini is the owner of its website, publishes articles of public importance, [and] allows subscribers to post comments to generate discussions. It designs its online platform for such purpose and decides to filter usage of foul words and relies on all the three measures it has taken. It designs and controls its online platform in the way it chooses. It has full control of what is publishable and what is not. In doing so it must carry with it, the risks that follow from allowing the way its platform operates.”

The majority may not have referred to a decision in June 2020 by the New South Wales Court of Appeal in Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102. But their decision bears semblance.

A news media, or any business for that matter, which maintains internet discussion forums, including social media pages on which third parties can engage in discussion, will need to become aware of and seek to guard against the risks of liability for comments by third parties.

In the Australian case, the three appellate judges held that a party who participated and was instrumental in bringing about publication of defamatory matter was potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees.

The three media groups in that case were held to be publishers because they had:

– subscribed for to a facility enabling them to have an “official” Facebook page for their newspapers;
– encouraged and facilitated the making of comments by third parties which when posted on the page were made available to Facebook users generally; and
– the control to monitor and delete user comments.

It was immaterial that the comments were promptly removed because the three media groups had facilitated the publication of them in the first place.

Following the Federal Court’s verdict, I sought out two friends who both teach cyberlaw. Both referred me to the case of Stem Life Bhd v Mead Johnson Nutrition (M) Sdn Bhd & Anor [2013] MLJU 1582. In this case, the High Court referred to the principle of law gleaned from decisions of the courts in the US, which is as follows:

“The question of discussion forums came before the courts in the second US case, Stratton Oakmont v Prodigy [where] the complaint was about a message posted to a discussion forum, hosted by Prodigy. The plaintiff sued Prodigy. On a preliminary point, the court held that Prodigy was liable as a primary publisher, as it had exercised some editorial control over the content of postings. It had, for instance, screened postings for offensive material and also held itself out as controlling the content of its bulletin boards. Prodigy… contracted out management of the forum to a third party, but that was held not to prevent liability arising.”

The High Court judge said that the principle ought to apply here in Malaysia but only to the defendant because “it edits, modifies and regulates the contents of its website and also assumes the responsibility of removing offensive or libelous publications from its website”.

Likewise, the majority found that Malaysiakini has full control over what is publishable and what is not. Malaysiakini failed to rebut the presumption of publication on grounds that it had no knowledge of the impugned comments, and facilitated the publication of the impugned comments.

Simply put, Malaysiakini is a publisher of third-party comments and is rightly held liable.

Freedom of speech is a constitutional guarantee but not worded in absolutist terms. Even the much respected American jurist, Professor Archibald Cox, acknowledged 40 years ago that freedom of expression, “despite its primacy, can never be absolute. At any time unrestrained expression may conflict with important public and private interest”.

In the Malaysiakini case, the unrestrained expressions were contemptuous of the courts. Lest it be forgotten, the Federal Court, the Court of Appeal and the High Court are each empowered by no less than the Federal Constitution itself to punish for contempt of itself.

In the case of AG & Ors v Arthur Lee Meng Kuang [1987] 1 MLJ 207, then Supreme Court judge Mohamed Azmi said as follow:

“In this country, the need to protect the dignity and integrity of the [Superior Courts] is recognised by art 126 of the Federal Constitution and also by s 13 of the Courts of Judicature Act 1964. A proper balance must therefore be struck between the right of speech and expression as provided for under art 10 of the Federal Constitution and the need to protect the dignity and integrity of the Superior Courts in the interest of maintaining public confidence in the judiciary.”

The learned judge said further:

“Whether a criticism is within the limits of reasonable courtesy and good faith must… depend on the facts of each particular case. In determining the limits of reasonable courtesy the court should not however lose sight of local conditions.”

As such, the verdict should not be seen as a shot at freedom of expression or freedom of the press in Malaysia.

It was a shot at unrestrained contemptuous comments which Malaysiakini was held liable for publishing.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.

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