[2021] 2 MLRA Peguam Negara Malaysia v. MKINI Dotcom Sdn Bhd & Anor 439 be liable for a variety of offences. Until then, it was not a ‘publisher’. This was in consonance with the CMA, which regulated the communications and multimedia industries. Parliament had stipulated that an online news portal became a ‘publisher’ with clear duties upon becoming cognisant of any unlawful comment which needed to be taken down. It was only upon failure to do so that it could be said that the publisher had committed a wrongdoing. Therefore, the imposition of an ‘ought to have known’ test ran away from the current legislation and the Content Code. (paras 255-258) (13) The Federal Constitution allowed for freedom of speech and expression subject to such law as Parliament might impose. It was no doubt true that art 10 explicitly recognised that the right to freedom of speech and expression might be restricted, but that curtailment might only be done by way of written legislation passed by Parliament. For the purposes of the present proceedings, it must be emphasised that there was no specific law enacted by Parliament that dealt with contempt of court. It was also significant that s 3(3) of the CMA declared that nothing in the CMA “shall be construed as permitting the censorship of the Internet”. The responsibility for online content rested primarily with the content creator (s 4.1(b) of the Content Code). An internet content hosting provider (ICH) should not be required to block access by its users of subscribers to any material unless directed to do so by the Complaints Bureau acting in accordance with the complaints procedure set out in the Content Code (s 11.1(c) and (d) of the Content Code). The enactment of the CMA and the Content Code evinced the intention of Parliament that liability would only be imposed on an online intermediary if it failed to respond to a flag and takedown process, rather than any form of pre-censorship or premonitoring basis. (paras 259-261) (14) The rationale for requiring actual knowledge as a criterion to establish liability for the acts of an online intermediary was to avoid placing an undue burden on entities for the contemptuous publications of others. A risk-averse approach that demanded that liability be imposed on the basis of constructive knowledge might result in the removal of non-contemptuous material, which in turn diluted the protection accorded to freedom of expression under art 10 of the Federal Constitution. If the ‘ought to know’ test was used to establish ‘publication’, ie: (i) the fact of the impugned comments appearing on the portal; and secondly (ii) ‘constructive knowledge’ to establish an ‘intention to publish’, then it amounted to applying a double inference or presumption against the online portal. Added to that, as liability affixed immediately upon the comment by the third party coming into existence on the portal, there was nothing the portal could do to alleviate its position either in respect of ‘publication’ nor ‘an intention to publish’. There was simply no defence to be availed of if a constructive knowledge test was to be accepted. (paras 264-267) (15) A criterion of imputed knowledge for the imposition of liability on internet intermediaries in the field of the law of contempt more appropriately belonged to the domain of the legislature. Thus, in the absence of a