[2021] 2 MLRA
Peguam Negara Malaysia
v. MKINI Dotcom Sdn Bhd & Anor
451
is increasingly controversial in the current cyber world. One popular school
of thought is that imposing liability on intermediaries to monitor content is
necessary for hate speech, fake news, bullying or invasion of privacy or any
area bordering on crime, such as contempt. This concern is needed to ensure
and protect the social environment that we inhibit online. It must reflect certain
norms of acceptable conduct not only to preserve the rights of individual but
also to preserve the social norms of any nation.
[37] One cannot insist on freedom of speech which transgresses on the
rights of others in society. Such a right cannot, above all extend to a right to
undermine the institution of the Judiciary, which will ultimately bring chaos in
the administration of justice.
[38] There is indeed a real need to enforce the law to maintain and uphold
social norms in our society. A technological intermediary cannot be allowed
to enable its wrongful behaviour to escape liability. However, common law
emphasises on personal liabilities. In general term, if a person is not personally
responsible for causing harm, he cannot be held accountable for the harmful
act.
[39] The question is whether there should there be any differing treatment
between the publication of the article by the internet content provider itself
and that of the comments published or posted by third party online subscribers.
We know that only third party online subscribers can post comments and not
the readers at large. The question to be asked is why do platform providers
around the world insist on allowing the right to comment only to registered
subscribers. The reason has to be for want of control over who and what can be
posted, besides perhaps for commercial reasons.
[40] In this regard, we are mindful that there is no clear jurisprudence that has
developed a precise theory to determine when an online intermediary who
creates a technology, system or platform that enables wrongful behaviour will
be liable. The blame has now to be considered.
[41] It falls on this court now to determine the extent of liability of an
intermediary like the 1st respondent here, over the impugned comments. In
all the earlier cases of pre-internet days, the liability of the publishers in law
is clear. Those were the days when the publishers were directly responsible
and liable for whatever they published in the print media. Those materials
published were subjected to editing by the editors. In the current arrangement,
the 1st respondent was not the one who authored the impugned comments.
The authors were their third party online subscribers.
[42] Harkening to the general principle of law that one cannot be held liable
for causing harm unless he committed the harmful act, the respondents
contended, they cannot be held liable for the acts of others, such as the third
party online subscribers.