440 Peguam Negara Malaysia v. MKINI Dotcom Sdn Bhd & Anor [2021] 2 MLRA statutory yardstick for cases involving internet intermediaries, it was the ‘actual knowledge’ test that should apply. It, therefore, followed that the 1st respondent was not a ‘publisher’ when the impugned comments first appeared on 9 June 2020 because it did not have any knowledge of the impugned thirdparty comments. It was only affixed with knowledge of those comments on 12 June 2020. Those comments were taken down within a timeframe of 12 minutes, falling well within the purview of ‘a reasonable time’. As such, the 1st respondent was not a ‘publisher’ of those impugned comments. The 2nd respondent as the chief editor was further removed as s 114A did not apply to him. Neither did the factual matrix of the case implicate him in such a fashion. (paras 268-270) (16) The respondents were not ‘publishers’ of the impugned comments. They did not fulfil either of the elements for the purposes of ‘scandalising the court’ contempt, ie the actus reus of the fact of publishing or making available the impugned comments on their portal and the mens rea element of an ‘intention to publish. The actus reus element required not only the mere appearance of the impugned comments on the portal but also the knowledge of the existence of those comments. The respondents had no such cognisance of the same because they were unaware of the existence and content of those impugned comments until 12 June 2020. They promptly removed the comments, thereby taking themselves outside the purview of being ‘publishers’ of the impugned comments. As they were not publishers, they did not publish the impugned comments. They had no requisite ‘intention to publish’, which was the foundational element for the quasi-criminal offence of scandalising the court contempt. The standard of proof was beyond a reasonable doubt, and that standard could not be met on the material on record. (paras 271-273) (17) The repercussions of extending the law of contempt from actual knowledge to constructive knowledge were that there would be a chilling effect on freedom of expression in the media. Even articles or statements expressing valid criticism might be excised or precluded from being published online. There was a grave likelihood that user comments would be disabled. That would be detrimental and anathema to art 10 of the Federal Constitution. Moreover, imposing liability for a portal’s negligence, rather than because it intentionally allowed an unlawful comment to subsist after becoming aware of it, was contrary to the CMA as well as the law of contempt, which required a clear intention to publish. Since the respondents had established that they did not know of the existence of the admittedly contemptuous comments until notification of the same and because the impugned comments were removed within a reasonable timeframe, it followed that the applicant had not demonstrated beyond a reasonable doubt that the respondents possessed the requisite intention to publish the impugned material. (paras 279-281) Case(s) referred to: Abdullah Atan v. PP & Other Appeals [2020] 6 MLRA 28 (refd) Abel v. Lee [1871] LR 6 CP 365 (refd)