LAWYERS and media groups have understandably expressed concern over the Federal Court’s decision to cite news organisation Malaysiakini for contempt and fine it RM500,000 for five readers’ comments.

Yet, didn’t the lawyers and media groups see it coming? Perhaps not the size of the fine which is, arguably, excessive, but the contempt decision itself.

Based on the summary of the majority decision, Malaysiakini admitted that the comments are indeed offensive, inappropriate, disrespectful and contemptuous, and regretted their publication.

However, Malaysiakini and editor-in-chief Steven Gan maintained that neither of them played a role in publishing the offending remarks.

So, the argument essentially was that they could not be held liable for contempt because the comments were posted by third party subscribers on the Malaysiakini website; they were not the author or editor of the impugning comments; and in fact had no knowledge of the comments till they were alerted by the police. After which they promptly took them down.

Is there no clear jurisprudence that has developed a precise theory to determine when an online platform provider who creates a technology, system or platform that enables wrongful behaviour, will be liable?

We could have looked down under to a decision in June 2020 by the New South Wales (NSW) Court of Appeal in Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102, which should alert media groups and lawyers alike.

A news media, or any business for that matter, who maintain internet discussion forums, including social media pages upon 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.

Key facts

The facts in that case are straight-forward, to which media like Malaysiakini should be able to relate.

Fairfax Media, Nationwide News and Australian News Channel maintained Facebook pages on which they published newspaper articles with an accompanying comment, image and headline.

Their posted news items concerned the incarceration of Dylan Voller in a juvenile detention centre. 

Third parties posted comments critical of him. Voller alleged that 10 of those comments were defamatory, including one which falsely accused him of assaulting a Salvation Army worker.

The media groups promptly removed these comments when they became aware of them.

Voller commenced defamation proceedings against the groups, alleging that particular comments conveyed defamatory imputations and that the groups were liable as publishers.

Trial judge decision

The trial judge had to first determine that the groups were ‘first or primary publishers’ of the third-party comments.

The trial judge found that the groups were indeed publishers. They then appealed to the NSW Court of Appeal.

Arguments by the groups

Like Malaysiakini, the groups argued that they were not publishers of third-party comments made on Facebook pages that they administered.

They further contended that they did not make the defamatory posts, which were available to the public, nor participate in the publishing process. For this reason, they should not be held responsible for the defamatory content.

Again like Malaysiakini, the groups argued that since they had promptly removed the defamatory comments when it came to their attention, they could not be regarded as adopting the position of those comments.

Court of Appeal decision

The Court of Appeal dismissed the case. The three appellate judges agreed with the trial judge that the groups were publishers of the third-party comments.

The appellate court held that a party who participated and was instrumental in bringing about publication of defamatory matter was potentially liable for having done so, notwithstanding the fact that others may have participated in that publication to different degrees.

The court held that the groups were 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 groups had facilitated the publication of them in the first place.

Let the media beware

Clearly, media groups in this case should have been alerted that they could possibly be publishers of third-party comments made on internet discussion forums they administer.

The groups may yet appeal to the highest court, the High Court of Australia.

However, we need not wait for that. The Federal Court has found that Malaysiakini has full control on what or what is not publishable.

It has failed to rebut the presumption of publication on the ground that it has no knowledge of the impugning comments, and has facilitated the publication of the impugning comments.

In short, Malaysiakini is a publisher of third-party comments.

Let the media beware. – February 20, 2021.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.