448
Peguam Negara Malaysia
v. MKINI Dotcom Sdn Bhd & Anor
[2021] 2 MLRA
a week, there is a strong probability that it would be read by at least some of
those summoned as jurors.”.
[22] Hence as for the traditional media, where the contempt has been published
by a newspaper or broadcasted by television or radio, the settled law is that it is
not only the author who may be held liable for the publication of contemptuous
statement, but also anyone who plays a significant role in the act of publication
or distribution of such statement.
Internet Posting In Other Jurisdictions
[23] The legal position is not as straightforward when it comes to the publication
of the modern media, by third party internet postings. The legal liability of
editors in the modern media is blurred by the fact that these postings go direct
to the media platform without the usual editing process. Some jurisdictions
take the view that an important consideration must be placed on whether
there is an active or deliberate act in making or allowing the postings of the
impugned statements by the internet content provider and its editorial team.
The cases below discuss the varied approaches taken on this subject in some
jurisdiction.
[24] In Totalise Plc v. Motley Fool Ltd [2001] IP & T 764, the High Court of New
Zealand found website operators not liable for the publication in contempt
of court. The decision was justified on the basis that, unlike a journalist who
is at law responsible for the material that he publishes, the website operators
exercise no editorial control over what is posted on their discussion boards.
Their role being merely to provide facilities for the public at large to convey
their views. In other words, the court in Totalise (supra) drew a distinction
between the journalists who have to take responsibility for the information that
he decides to publish in a print media to that of the automated processes of a
digital intermediary.
[25] In the United Kingdom case of Bunt v. Tilley & Ors [2006] 3 All ER 336,
Eady J observed at para 23:
“Of course, to be liable for a defamatory publication it is not always necessary
to be aware of the defamatory content, still less of its legal significance. Editors
and publishers are often fixed with responsibility notwithstanding such lack
of knowledge. On the other hand, for a person to be held responsible there
must be knowing involvement in the process of publication of the relevant
words. It is not enough that a person merely plays a passive instrumental role
in the process. (See also in this context Emmens v. Pottle [1885] 16 QBD 354 at
357 per Lord Esher MR.)”
[26] In the Australian case of Competition and Consumer Commission v. Allergy
Pathway Pty Ltd [2011] FCA 74, Finkelstein J found the respondent liable for
contempt of court for breaching the undertaking by making several publications
including testimonials written and posted by a third party on the respondent’s
Facebook wall. The respondent was held liable on the basis that it had accepted