Who answers for readers’ comments? The Malaysiakini contempt ruling explained

Anyone who runs a comments section, a Facebook page or an online forum is hosting other people’s words. On 19 February 2021 a seven-judge bench of the Federal Court decided, by six to one, that the news portal Malaysiakini was legally responsible for five comments posted by its readers, and fined its operating company RM500,000. The case was about contempt of court, not defamation. It is nevertheless the apex court’s fullest discussion of when a platform operator is treated as the publisher of what third parties post, a question central to online defamation disputes.

Five comments under a news report

On 9 June 2020 Malaysiakini carried a news item about the Chief Justice’s direction that the courts would be fully operational from 1 July 2020. Five comments posted by subscribers beneath it attacked the judiciary; we do not repeat them.

The Attorney General applied to commit the portal’s operating company, Mkini Dotcom Sdn Bhd, and its editor-in-chief for contempt.

Malaysiakini said that it did not know of the comments until alerted, and then removed them promptly. It pointed to its terms and conditions, a banned-word filter and a system for readers to report one another’s comments.

The presumption in section 114A

The argument turned on section 114A of the Evidence Act 1950, inserted by the Evidence (Amendment) (No 2) Act 2012 and in force since 31 July 2012. The section creates presumptions of fact about who published online content.

Under subsection (1), a person whose name, photograph or pseudonym appears on a publication as its owner, host, administrator, editor or sub-editor, or who facilitates its publication, is presumed to have published it. Subsection (2) raises a similar presumption against the registered subscriber of the network service, and subsection (3) against the person who has custody or control of the computer. Each presumption can be rebutted, but the burden lies on the person presumed to be the publisher.

The majority and the lone dissent

The majority, led by Rohana Yusuf PCA, held that section 114A(1) applied: the portal, as the host that facilitated publication of the comments, was presumed to be their publisher, and it had not rebutted the presumption. Knowledge could be inferred from the surrounding facts: the portal designed and controlled the comment facility, it had an editorial structure, and the risk was foreseeable. Its safeguards were found to be inadequate, and compliance with the Content Code under the Communications and Multimedia Act 1998 was not enough. Contempt was proved against the company, which was fined RM500,000.

Contempt was not proved against the editor-in-chief personally; the court held that section 114A did not operate against that individual.

Nallini Pathmanathan FCJ dissented. In the dissenting judge’s view, an online intermediary should be liable only where it has actual knowledge of the offending content. The portal had rebutted the presumption by showing that it did not know of the comments and removed them promptly, and there was no intention to publish.

The portal later applied for a review of the decision. According to Malay Mail, a seven-judge Federal Court panel chaired by Zaleha Yusof FCJ unanimously dismissed that application on 29 March 2022. The ruling is final.

A contempt ruling that casts a shadow over defamation

As a contempt case, it decides no defamation claim; its importance lies in the reasoning on publication. A defamation claimant must show that the defendant published the words, and the courts have applied section 114A in civil defamation suits as well.

In Stemlife Berhad v Mead Johnson Nutrition (Malaysia) Sdn Bhd & Anor, according to a practitioner’s annual review of cyberlaw cases, the High Court in Kuala Lumpur held a company that hosted a parenting forum liable for users’ defamatory postings about another business, applying section 114A and finding the presumption unrebutted.

In GS Realty Sdn Bhd v Lee Kong Seng the High Court dealt with an individual’s Facebook page. The defendant was held liable not only for his own posts about a property company but also for third-party comments beneath them, because he knew of the comments, engaged with them, controlled the page and did not remove them after notice.

The limits of these authorities matter. We are not aware of any reported Malaysian decision that holds a WhatsApp group administrator liable merely for being the administrator, that treats a bare like as publication, or that deals specifically with Google reviews or patients’ reviews. The cases above suggest that risk rises once a host knows of a defamatory comment and leaves it up, but for group administrators that remains commentary, not settled law.

In a speech published by the judiciary in 2023, Harmindar Singh Dhaliwal FCJ noted the decision’s implications for intermediaries, observed that Malaysia has no clear statutory timeline for taking content down, and pointed out that the Defamation Act 1957 has no provisions on online libel.

Practical takeaways for page owners, forum hosts and group admins

• If you open a comments section, forum, page or group, the law may presume that you published what others post there. The burden then shifts to you.

• A terms-of-use page and a banned-word filter were not enough in this case. What helps is active moderation, a working report function, a named person who acts on complaints, and a log of when you were told and when you removed the content.

• Remove first and argue later. The longer a complained-of comment stays up after notice, the easier it is to infer that you knew of it.

• Do not like, reply to or banter with a defamatory comment under your own post. In GS Realty, engaging with the comments was part of the reason for liability.

• Businesses running brand pages carry the primary risk, as the company did here. Appoint a moderator, consider comment pre-approval or keyword filters for sensitive posts, and keep screenshots.

Authorities and sources

• Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652; [2021] 3 CLJ 603; [2021] 2 MLRA 434 (Federal Court, 19 February 2021)

• GS Realty Sdn Bhd v Lee Kong Seng [2018] MLJU 1902 (High Court)

• Stemlife Berhad v Mead Johnson Nutrition (Malaysia) Sdn Bhd & Anor (High Court, Kuala Lumpur)

• Evidence Act 1950, section 114A, inserted by the Evidence (Amendment) (No 2) Act 2012 (Act A1432)

• Communications and Multimedia Act 1998 (Content Code framework); Defamation Act 1957

• Malaysian judiciary, press summary of the majority judgment, 19 February 2021; speech on defamation issues by Harmindar Singh Dhaliwal FCJ, 29 September 2023

• Malaysian Bar, press release on section 114A, 13 August 2012; Malay Mail, 19 February 2021 and 29 March 2022

This article is general legal information only and is current as at 19 September 2026. It is not legal advice and does not create a solicitor-client relationship. Court decisions may be appealed and the law may change; please seek advice on your own circumstances. — Chris & Partners, Advocates & Solicitors