SECTION 114A EVIDENCE ACT 1950 - PRESUMPTION OF FACT IN PUBLICATION: A SWORD FOR VINDICATION OR A SHIELD FROM INTERNET ANONYMITY
The law of presumption of fact in publication under Section 114A of the Evidence Act 1950, presumed that in any online contents posted on the internet, such posting is presumed to be published or re-published by the person whose name, photo or pseudonym appear on the said online contents either as owner, host, administrator, editor or sub-editor or person who facilitates the posting or re-posting of the said online contents. This presumption also extended to subscriber of a network service, and any person who in custody or control of the computer of which the postings of the said online contents is originated from and the only viable rebuttal is the ‘unless contrary is proved’.
On a plain reading of the statutory provision, it is safe to assume that this is a broad presumption of facts which conceivably in favour of the potential suing party as its ‘lowers the bar’ or make it a smooth sailing for the suing party to establish their claims. Whereas the alleged publisher/re-publisher is placed with evidential burden which shall be an uphill challenge to negate this presumption. Be that as it may, this law of presumption of publication plausibly be an effective mechanism for suppressing unlawful or ‘unwanted’ online contents on the vast world wide web.
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Nevertheless, the rationale behind the legislation of Section 114A can be found in the Hansard of the Dewan Rakyat which focused their attention on the challenges in identifying cybercriminals trickle down to tracing the offenders who naturally can hide behind the cloak of Internet anonymity which warranted a provision on presumption based on the "owner honest principal" to ease the burden of proof in respect of certain facts. The presumption of fact in the publication was sought to assist in identifying and in proving the identity of an anonymous person involved in the publication through the Internet.[1]
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This law of presumption of publication were discussed at great length by the recent judiciary approach in the case of Peguam Negara Malaysia V. Mkini Dotcom Sdn Bhd & Anor [2021] 3 CLJ 603. In this case, the Federal Court held that the 1st Respondent who is the owner of online news website Malaysiakini liable for the contemptuous comments posted by third parties in their website as they failed to rebut the presumption under s. 114A on the balance of probabilities.
In their affidavits, the rebuttal raised were that they had no knowledge of such contemptuous comments by third parties not until they were alerted by the police and promptly after that alert, they immediately reviewed and removed the said contemptuous comments. However, the rebuttal failed.
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In reaching its decision, the Federal Court held that knowledge could be deduced or inferred from surrounding circumstances. The 1st Respondent who had total of 65 people working in their editorial team with impressive reporting structure, at least one of the editors should have notice and knowledge of the said contemptuous comments. It would be expected for the owner of online news website to foresee the kind of comments attracted when they published news on the matters of public interest. Ultimately, as the owner of the website who has full control of what is publishable and what is not, it must carry with it, the risks that follow from allowing the way its platform operates. Further for a website that is designed with filter system it is perplexed how it failed to filter contemptuous comment.
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Conclusion
The underlying key consideration to bear in our mind is that the ‘unless contrary is proved’ is hardly a feasible defence at the first place. Whether evidence adduced is sufficient or not to rebut the presumption was vary, subject to the facts, circumstances, and peculiarity of the case but essentially, the approaches taken by the court. There are no hard and fast rules. Viewed in this perspective, it is arguable that the presumption on publication should not reduce to injustice.
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The law can be a sword or a shield. This is always the dilemma of law. On one hand, the law can be good for humanity, peace, and just but in another instance be harmful and cause injustice to another.[2] In this context, the presumption on publication become a shield when it protects public from cyber-crimes and upholding the judiciary’s integrity from the publication of online contemptuous contents. However, the presumption become a sword, when press freedom is threatened with ‘ought to have knowledge and control’ liability as an online news portal now will be liable for third party offensive and contemptuous comments which appear on their news website.
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[1] Peguam Negara Malaysia V. Mkini Dotcom Sdn Bhd & Anor [2021] 3 CLJ 603
[2] https://uwaterloo.ca/grebel/publications/conrad-grebel-review/issues/spring-2007/law-sword-law-shield