On 19 February 2021, the Federal Court in the case of Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Another [2021] 2 MLJ 652 found Mkini Dot Com Sdn. Bhd., the owner and operator of the Malaysian online news portal 'Malaysiakini' ("Malaysiakini"), liable for contempt of court in relation to third-party comments that were posted on Malaysiakini’s website. The Federal Court had imposed a fine of RM500,000 on Malaysiakini because the court found that the contempt committed, which involved baseless allegations of corruption regarding the Chief Justice of Malaysia, was severe and undermined public confidence in the Judiciary.
Malaysiakini was held liable based on Section 114A of the Evidence Act 1950 (Act 56) ("Section 114A") which presumes Malaysiakini to be the publisher of the impugned comments based on the fact that: (i) Malaysiakini depicted itself as the host of the comments; and (ii) Malaysiakini facilitated the publication of the comments. Notwithstanding Malaysiakini's contention that it had adhered to the "flag and take down" approach in compliance with the Malaysian Communications and Multimedia Content Code, this was held to be insufficient for online intermediary platforms like Malaysiakini to rebut the presumption under Section 114A and avoid liability for third-party content. The Federal Court's decision has therefore placed a very high standard of care on online intermediary platforms that exercise control over third-party content.
