452
Peguam Negara Malaysia
v. MKINI Dotcom Sdn Bhd & Anor
[2021] 2 MLRA
[43] The cases referred to earlier on online publication demonstrate the
difficulties faced by the court in pinning down the role of publication on the
internet content provider when the comments were made and posted by third
parties.
[44] It must be to resolve this difficulty that the Malaysian Parliament enacted
s 114A of the Evidence Act. The provision as the wordings suggests an aim at
presuming responsibility of publication on the internet platform provider by
dedicating specifically s 114A to such a subject. To better appreciate the law, it
is useful to reproduce here that provision in extensor:
“Presumption of fact in publication
114A. (1) A person whose name, photograph or pseudonym appears on
any publication depicting himself as the owner, host, administrator, editor
or sub-editor, or who in any manner facilitates to publish or re-publish the
publication is presumed to have published or re-published the contents of the
publication unless the contrary is proved.
(2) A person who is registered with a network service provider as a subscriber
of a network service on which any publication originates from is
presumed to be the person who published or re-published the publication
unless the contrary is proved.
(3) Any person who has in his custody or control any computer on which
any publication originates from is presumed to have published or republished the content of the publication unless the contrary is proved.
(4) For the purpose of this section:
(a) “network service” and "network service provider" have the meaning
assigned to them in s 6 of the Communications and Multimedia Act
1998 [Act 588]; and
(b) “publication” means a statement or a representation, whether in
written, printed, pictorial, film, graphical, acoustic or other form
displayed on the screen of a computer.”
[45] The presumption may be invoked against any person whose name appears
on the publication as either the owner, host, administrator, editor, or subeditor. It is beyond argument that Malaysiakini as the 1st respondent depicted
itself as the host to the publication and by virtue of s 114A(1), Malaysiakini
is presumed to have published the impugned comments. We will deal with the
possible presumption against the 2nd respondent later.
[46] With the presumption in place, in our view the AG had overcome the
hurdle of imputing responsibility of the publication on the 1st respondent. The
term “presumption” properly describes the process whereby, upon the proof
of the required basic fact or facts, the existence of the presumed fact may be
inferred from it (see Alma Nudo Atenza v. PP & Another Appeal [2019] 3 MLRA
1; Abdullah Atan v. PP & Other Appeals [2020] 6 MLRA 28, C Tapper, Cross &