PEGUAM NEGARA MALAYSIA v. MKINI DOTCOM SDN BHD & ANOR
FEDERAL COURT, PUTRAJAYA
ROHANA YUSUF PCA
AZAHAR MOHAMED CJ (MALAYA)
ABANG ISKANDAR CJ (SABAH & SARAWAK)
MOHD ZAWAWI SALLEH FCJ
NALLINI PATHMANATHAN FCJ
VERNON ONG LAM KIAT FCJ
ABDUL RAHMAN SEBLI FCJ
[CIVIL APPLICATION NO: 08(L)-4-06-2020(W)]
19 FEBRUARY 20
[2021] CLJ JT (6)

Abstract:

Section 114A of the Evidence Act 1950 provides for presumptions of facts in publication of contents on the internet to assist in identifying and in proving the identity of an anonymous person involved in the publication through the internet. This, however, does not mean that the prosecution need to prove the existence of the basic facts before invoking such presumption. The presumption is indeed rebuttable and rebuttal raised must be on the balance of probabilities. With the invocation of the presumptions, online portals/platforms that contain offensive comments could be held liable for facilitating the publication of such comments. In order to avoid liability, these online platforms/portals must have in place a system that is capable of detecting and rapidly remove offensive comments. Portals/platforms could not just wait to be alerted because such alert may never come. To accept such measures as a complete defence would be to unjustifiably and irresponsibly shift the entire blame on third party online subscribers while exonerating itself of all liabilities.

CRIMINAL LAW: Contempt – Committal proceedings – Application for – Application for committal proceedings by Attorney General against online news portal (‘respondents’) – Respondents published article on re-opening of courts – Third party subscribers of portal left comments criticising courts and Judiciary and implying Chief Justice was corrupt – Whether respondents had knowledge of impugned comments – Whether respondents facilitated publication of comments – Whether presumption under s. 114A of Evidence Act 1950 could be invoked – Whether respondents presumed to be publishers of comments – Whether prima facie case for contempt of court established – Whether intention to publish must be proven

EVIDENCE: Presumption – Presumption of facts – Publication of contents on Internet – Application for committal proceedings by Attorney General against online news portal (‘respondents’) – Respondents published article on re-opening of courts – Third party subscribers of portal left comments criticising courts and Judiciary and implying Chief Justice was corrupt – Whether respondents facilitated publication of impugned comments – Whether respondents had knowledge of comments – Whether presumption under s. 114A of Evidence Act 1950 could be invoked – Whether respondents could be presumed to be publishers of comments – Whether prima facie case for contempt of court established – Whether intention to publish must be proven – Whether requirements under s. 114A(1) of Evidence Act 1950 satisfied

CRIMINAL LAW: Contempt – Committal proceedings – Committal proceedings by Attorney General against online news portal (‘respondents’) – Defence – Respondents published article – Third party subscribers of portal left comments criticising courts and Judiciary and implying Chief Justice was corrupt – Whether compliance with Malaysian Communications and Multimedia Content Code (‘MCMCC’) defence against any action or prosecution in court or other forum – Whether respondent complied with MCMCC and afforded defence under law – Whether respondents not required to monitor activities of users and subscribers until being prompted by complaints – Communications and Multimedia Act 1998, ss. 98 & 99