[2021] 2 MLRA Peguam Negara Malaysia v. MKINI Dotcom Sdn Bhd & Anor 465 [104] Further application went to the European Court of Human Rights. At the ECtHR, the case was heard by a panel of seven judges sitting as a Chamber. It decided that in addition to what was decided in Delfi (supra) the ECtHR looked at the context of the comments. The court resorted to the “proportionality test” which includes assessment on contribution to a public interest debate, the subject of the report, the prior conduct of the person concerned, the content, the form and consequences of publication including the gravity of the penalty imposed on the journalists or publishers. [105] The court found that the content of the statements in the article and comments thereof were not defamatory. The statements were of value judgments or opinions in that they are a form of denouncement of a commercial conduct that has already taken place and been publicly known; of which also contained the commenters’ personal frustration of being tricked by the company. [106] It was held that consequences of the comments must nevertheless be put into perspective. This case is of no relevance to our case as the facts differ materially. [107] Learned respondents’ counsel had brought to our attention the latest decision by the Supreme Court of India by a letter dated 1 September 2020. The case is Re: Prashant Bushan & Anor, Suo Motu Contempt Petition (Crl) No 1 of 2020 which decided on the subject of contempt on Twitter account. The Supreme Court took a suo motu cognisance of the offending tweets and issued notices to the author of the offending tweets, a lawyer Prashant Bushan. The Twitter Inc California was also made a respondent. It was lodged on the basis that the tweets brought disrepute to the administration of justice and undermined the dignity and authority of the Supreme Court in public eyes. The Supreme Court whilst finding the lawyer guilty of criminal contempt held the Twitter Company not guilty. [108] At paragraph 76, the Supreme Court found the Twitter company as intermediary, has no control on what the users post on its platform. We agree with the Supreme Court that a Twitter platform is a completely uncontrolled platform. Unlike Malaysiakini, which has control over who can post comments and has installed filter on certain prohibitive comments hence it cannot be said that anything published on its portal is beyond control. Therefore, the case is distinguishable on its facts. The twitter platform is totally different from Malaysiakini platform. [109] Having analysed the above cases, we bear in mind that in all the above decisions there are no provisions similar to s 114A of our Evidence Act that come into play. Hence, it can be seen that the approach taken by the courts in other jurisdictions in determining the test applicable was developed through case law based on various considerations. Those approaches vary according to the facts, circumstances and peculiarity of the case. Our Parliament had resolved it by presuming who is a publisher by enacting s 114A.