KOTA KINABALU – The judiciary has been urged to be cautious in interpreting the law after news portal Malaysiakini was found guilty of contempt yesterday.
Sabah Law Society president Roger Chin said the article in question published by the site was inoffensive, adding that irresponsible third parties were the ones who posted defamatory and derogatory comments targeted at the judiciary.
“There is little to no cause to believe that Malaysiakini or its officers were the authors of the comments.
“Despite learned members (of the Federal Court) concluding that the news portal or its officers were not the authors of the derogatory comments, Malaysiakini was still found liable because of a presumption found in Section 114A of the Evidence Act 1950.
“This section provides that the owner or editor of a publication is presumed to be the publisher unless the contrary is proved. It was on the back of this presumption that the majority of the Federal Court judges found Malaysiakini liable for contempt of court.
“With the greatest respect to the bench, this is a rebuttable presumption. The comments were removed by Malaysiakini within minutes of being informed, and there is little doubt that neither the site nor its officers were the authors or publishers of the derogatory comments.
“The bench expressed its dissatisfaction that the comments were able to bypass the site’s speech filters. The reality is that human ingenuity – even when employed for dubious ends – will easily bypass automated text filters.
“A further reality of the present information age is that there will always be anonymous comments and means of hiding one’s identity.”
Hence, the society urges the judiciary to be cautious in its interpretation and application of section 114A of the Evidence Act 1950.
“It would be even better if there is a legislative reform to do away with this presumption, thus necessitating the need to prove the owner or editor of a publication be the publisher rather than shifting the burden of proof to prove the contrary,” Chin said.
He added that the majority decision of the Federal Court has the unfortunate effect of placing an onerous burden on online publishers to engage in a constant battle to police their commenters.
“The net effect will likely be stifling if these publishers are required to practise strict policing, reviewing and editing of comments by third parties, which will ultimately lead to the curbing of freedom of speech.” – The Vibes, February 20, 2021
