Liability of Online Intermediary Platforms for Third-Party Contents
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Liability of Online Intermediary
Platforms for Third-Party
Contents
by Lau Wai Kei
Generally, “online intermediaries” refers to a person who
transmits, stores or publishes materials on behalf of users,
although different countries may adopt different definitions.
Examples of online intermediaries in today’s setting include
internet service providers, web hosting service providers, search
engine service providers, social media platform providers,
providers of internet-based messaging services and content
aggregators.
With the advancement of technology, the or subscribers can mainly be found in the
role of online intermediaries has evolved in Communications and Multimedia Act 1998
tandem, taking a greater role in promoting (CMA), the Malaysian Communications and
digital economy and providing greater Multimedia Content Code (Content Code) and
access to information. Regrettably, despite the Evidence Act 1950 (EA).
the benefits that may be brought about by
online intermediaries, online intermediaries (a) CMA
have somehow unintentionally facilitated the
development, dissemination and amplification The CMA provides for and regulates the
of offensive, harmful and illegal contents converging communications and multimedia
such as fake news and hate speech. In view industries in Malaysia. Section 211 provides that
thereof, there is a question as to whether it is an offence if a content applications service
online intermediaries, who merely transmit provider (CASP), or other person using a
such third-party contents or provide platforms content applications service, provides content
for their users or subscribers to publish such which is indecent, obscene, false, menacing
third-party contents, can be held liable for such or offensive in character with intent to annoy,
third-party contents. abuse, threaten or harass any person. CASP
refers to a person who provides an applications
This article focuses on online intermediaries service which provides content. Application
who provide platforms for their users or service is in turn defined as a service provided
subscribers to publish online materials (such as by means of network services.
contents, postings or comments).
A plain reading of this section would indicate
The law that online intermediaries who fall within the
In Malaysia, the laws on liabilities or definition of CASP under the CMA would be
responsibilities of online intermediaries for subjected to the prohibition under s 211 of the
third-party contents published by their users CMA. However, it is not immediately clear if the
CASP will be liable if the prohibited content
8
over the composition of such content
nor any knowledge of such content
is deemed an innocent carrier. As a
general rule, an innocent carrier is not
is published by a third-party user or as a form of self-regulation, unless: (i) a responsible for the content provided,
subscriber on its platform, and that the person is specifically directed to do so and responsibility for content provided
CASP played no role in such publication. by the MCMC under s 99 of the CMA; online primarily rests with the creator of
(ii) a person has submitted his or her the content.
(b) Content Code agreement to the CMCF that he or she
will be bound by the Content Code; or The above appears to show that as long
The Content Code provides further (iii) a person is a member of the CMCF as the Code Subject is considered an
clarity on the responsibilities of CASPs (collectively, Code Subject), which innocent carrier, it would not be liable
for third-party contents. would entail having to mandatorily for third-party contents. Its liabilities
comply with the Content Code. only arise when it is notified of the
The Content Code was created Compliance with the Content Code prohibited contents on its platform,
pursuant to s 213 of the CMA by the could serve as a legal defence against and it failed to take the required steps
Communications and Multimedia any prosecution, action or proceeding set out in the Content Code in handling
Content Forum Malaysia (CMCF) of any nature, whether in court or such prohibited contents.4
and is registered with the Malaysian otherwise. Thus, CASPs that are not a
1
Communications and Multimedia Code Subject may opt to comply with (c) EA
Commission (MCMC). It provides specific the requirements in the Content Code,
online guidelines that are applicable to to the extent applicable.2 Section 114A of the EA is also relevant,
CASPs such as internet content hosts, as it provides presumptions of fact
online content developer and online The Content Code adopts the concept in publication of contents on the
content aggregator. It is to be noted of innocent carrier.3 Pursuant to this internet. Section 114A(1), in particular,
that compliance with the Content Code concept, a person providing access to states that a person whose name,
is voluntary and should be adhered to any content but has neither control photograph or pseudonym appears on
1 CMA, s 98(2)
2 In the recent Malaysiakini case, Malaysiakini failed in its argument that its compliance with the Content Code can serve as a ground of defence,
as the court found that Malaysiakini had in actual fact failed to comply with the Content Code.
3 Section 2, Part 5, Content Code
4 If the Code Subject has breached the Content Code, the Complaints Bureau may impose fines and other penalties permitted such as issuing a
written reprimand, imposing a fine not exceeding RM50,000 and/or requiring the removal of the content or cessation of the offending act. The
Complaints Bureau may also refer the offending party to the MCMC for further appropriate action as may be required (section 8.0 Part 8, Content
Code). Note that these penalties do not apply to CASPs or any other parties who are not subjected to the Content Code.
9
any publication depicting himself as contemptuous, inappropriate and not stages. First, where opportunities for
the owner, host, administrator, editor condoned by them. Hence, the issue knowledge on the part of the particular
or sub-editor, or who in any manner before the Federal Court was whether person are proved. Second, where there
facilitates to publish or re-publish the Respondents were liable for the is nothing to indicate that there are
the publication is presumed to have Comments which were posted by obstacles to that person acquiring the
published or re-published the contents third-party subscribers. The court, in a relevant knowledge, and that there is
of the publication unless the contrary majority judgment, held Malaysiakini some evidence from which the court
is proved. Section 114A is intended to guilty of contempt and fined the can conclude that such person has
address the mischief posed by internet company RM500,000, but not its editor- knowledge.
anonymity. It does not impute guilt or in-chief.
liability on the part of the “presumed Relying on the aforementioned
publisher”, but merely shifts the burden In coming to its decision, the Federal legal principle, the court held that
of proof onto the presumed publisher Court had to consider whether Malaysiakini could not deny knowledge
to explain why he is not responsible for Malaysiakini could rely on two grounds of the existence of the Comments,
the content on the internet portal or to rebut the presumption of publication notwithstanding the fact that it was
site. under s 114A(1) of the EA: (a) whether only aware of the Comments a few
Malaysiakini was responsible for the days later upon being notified. This
Online intermediaries may be caught Comments if it had no knowledge of the is on the basis that (among others)
under this section. In such situations, said Comments being posted; and (b) Malaysiakini failed to have in place a
they are presumed to be the “publisher” whether compliance with the Content system that is capable of detecting and
of a publication which contains Code could serve as a defence against rapidly remove offensive comments
prohibited contents, even though they prosecution in court. — Malaysiakini cannot just wait to be
are not the author or editor of the alerted. Further, the Malaysiakini news
publication. 5
(a) Whether Malaysiakini is portal enjoys extensive readership and
responsible for the Comments receives about 2,000 comments per day,
The Malaysiakini case if it has no knowledge of the on top of the fact that it had editorial
The abovementioned laws were put Comments being posted control over the contents posted in
to the test in the recent case of Mkini the comments section. Malaysiakini
Dotcom, where the issue on liabilities
6 The issue of lack of knowledge was also had a structured, coordinated and
of online news portal with regard to central to Malaysiakini’s argument that well-organised editorial team, which
comments posted by its subscribers it was not a publisher under s114A(1) should have taken notice and be well
was discussed. of the EA. Malaysiakini argued that it aware of the Comments. Malaysiakini’s
should not be held responsible because editorial team was expected to foresee
A contempt proceeding was it had no knowledge of the Comments the kind of comments attracted by the
commenced by the Attorney General and the Comments were not originated publication of the article given their
of Malaysia against Mkini Dotcom Sdn and authored by the company. In any experience in running the news portal
Bhd (Malaysiakini) and its editor-in- event, Malaysiakini had implemented for over 20 years.
chief (collectively, Respondents) due a takedown policy, where they may
to comments (Comments) posted by remove or modify comments posted In gist, the court in the majority
Malaysiakini’s subscribers below an by its subscribers upon receiving a judgment held that Malaysiakini’s
article entitled, “CJ orders all courts complaint. knowledge of the Comments can be
to be fully operational from July 1”. deduced or inferred from the various
The Comments were said to have the The court, in a majority judgment, facts put forward by Malaysiakini.
effect of undermining the institution stated that knowledge is purely a Therefore, Malaysiakini should be
of the judiciary and bring chaos in the matter of fact, which can be deduced held responsible for the Comments.
administration of justice. or inferred from the circumstances The aforementioned position can
surrounding each particular event. be contrasted with the dissenting
The Respondents admitted that Therefore, in inferring knowledge, the judgment in this case, in which the
the Comments were offensive, court may approach the matter in two “actual knowledge” test was used in
5 Publication is defined widely to mean a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other
form displayed on the screen of a computer.
6 Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652
10holding that Malaysiakini should not creator of the content — Malaysiakini is contents, it is worthwhile to find out
be held responsible for the Comments. not required to monitor activities, until the legal trends in other jurisdictions on
In brief, in the “actual knowledge” test, it is prompted by complaints. this similar issue.
an online content service provider like
Malaysiakini that operates a news portal The court disagreed with Malaysiakini 1. United States of America
and provides content in various forms, and held that Malaysiakini had in fact
including the invitation of comments failed to comply with the Content Section 230(c)(1) of the Communication
from third-party subscribers, would not Code, and could not therefore raise Decency Act of 1995 (CDA) states that
be liable as a publisher until and unless compliance with the Content Code as no provider or user of an interactive
it has knowledge or becomes aware of a ground of defence. According to the computer service shall be treated as the
both the existence and the content of court, the provisions in the Content Code publisher or speaker of any information
the subject material that is unlawful or have to be read holistically, taking into provided by another information
defamatory, and fails to take down the consideration the overriding general content provider. In other words, online
material concerned within a reasonable principles in s 2 of the Content Code8 intermediaries that host or republish
time. In other words, actual knowledge and the underlying purpose of the speech are protected against a range
of, and consent to, such content is Content Code. Malaysiakini also failed of laws that might otherwise be used
necessary before an online intermediary to ensure that its users or subscribers to hold them legally responsible for
becomes liable as a publisher for such are aware of the requirement to comply what others say and do (with some
content. with Malaysian laws including, but not exceptions). Further, s 230(c)(2) of the
limited to, the Content Code. 9
CDA allows a provider or user of an
(b) Whether compliance with interactive computer service to restrict
Content Code serves as a It is noteworthy that in the access to or availability of material
defence against prosecution dissenting judgment, Justice Nallini that the provider or user considers
in court Pathmanathan agreed with the to be obscene, lewd, lascivious, filthy,
argument put forward by Malaysiakini. excessively violent, harassing, or
As mentioned, while compliance with A news portal becomes a “publisher” otherwise objectionable, within being
the Content Code is not mandatory upon becoming cognisant of any held liable.
under the law, except for a certain unlawful comment which needs to
category of persons, it can nonetheless be taken down. Liability will only be This provision has long served as a “safe
be raised as a defence against imposed on an online intermediary if it harbour” for online intermediaries that
prosecution in court.7 On this basis, fails to respond to a flag and takedown rely heavily on third-party contents for
Malaysiakini argued that as it had process, rather than any form of pre- revenue, and allowed them to thrive.
complied with the Content Code in censorship or pre-monitoring basis. As While this law still stands to date, there
running its news portal, it should be Malaysiakini removed the Comments have been many discussions calling for
allowed to raise such compliance as a within 12 minutes upon becoming the review or revocation of s 230 of the
defence against prosecution in court aware of the Comments, it should not CDA, with some requesting companies
and, as a result, should not be responsible be held liable for the Comments. be made liable for harmful contents by
for the Comments. Further, pursuant to third parties.10
the Content Code, Malaysiakini is not Recent trends across the
required to censor comments prior to globe 2. United Kingdom
their being uploaded on its portal and Having observed the current legal
the responsibility for any content of position in Malaysia on liabilities of The Online Safety Bill11 (Bill) was
a publication primarily rests with the online intermediaries for third-party published in May 2021, which serves
7 CMA, s 98
8 Section 2 of the Content Code provides for the general principles of contents displayed or communicated. Some of these principles are: (a)
contents shall not be indecent, obscene, false, menacing or offensive; (b) content providers will bear in mind the need for a balance between
the desire of viewers, listeners and users to have a wide range of content options and access to information on the one hand, and the necessity
to preserve law, order and morality on the other; and (c) the Code Subject will ensure that their content contains no abusive or discriminatory
material or comment on matters of, but not limited to, race, religion, culture, ethnicity, national origin, gender, age, marital status, socio
economic status, political persuasion, educational background, geographic location, sexual orientation or physical or mental ability.
9 Section 10.1, Part 5 of the Content Code
10 See https://www.businessinsider.com/what-is-section-230-internet-law-communications-decency-act-explained-2020-5
11 See https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/985033/Draft_Online_Safety_Bill_
Bookmarked.pdf
11as the proposed legal framework to must remove or disable access to that contents.17 Publisher must also
combat illegal and harmful practices material. Otherwise, the intermediary appoint a grievance officer to
online. Among others, the Bill imposes would be held liable for such third-party address grievances received.
duties of care on providers of user-to- materials.13
user services (referring to an internet Positions in both the US and India are
service by means of which content that Section 79 of the India ITA has to be similar to a certain extent, in that as
is generated, shared or uploaded by a read with the Information Technology a general rule, online intermediaries
user of the service may be encountered (Intermediary Guidelines and Digital are not responsible for third-party
by another user of the service) and search Media Ethics Code) Rules 2021 (2021 contents. However, unlike the US, India
services. While there are differences Rules), which was recently issued to has imposed extensive obligations that
between the two sets of obligations, regulate intermediaries, publishers of online intermediaries must comply
they broadly include risk assessment news and current affairs and publishers with, failure of which may result in them
duties, safety duties (in terms of the of online curated content. Among being liable for third-party contents. In
mitigation and minimisation of harmful others, the 2021 Rules provides for the the UK, the Bill imposes duties of care
content), duties about rights to freedom following: on providers of regulated services, a
of expression and privacy, reporting and breach of which may entail significant
redress duties and record-keeping and (a) Intermediary — must fines and penalties under the Bill.
review duties. Further, a Code of Practice conduct various due diligence Further details on the extent or scope
is expected to be issued under the Bill, measures stated in r 3 of of duties of care are expected to be set
which will provide greater details on the the 2021 Rules, including out in the Code of Practice, which is
scope of duties that providers of user-to- (among others) publishing expected to be issued by the regulator
user services and search services have to rules and regulations, privacy of the UK telecommunications industry
or are recommended to comply with. policy and user agreement in due course.
which contain information
3. India provided in r 3(1)(b). It must As regulating online intermediaries is
also remove or disable access inevitable, it is important for countries
Pursuant to s 79 of the Information to prohibited information to clearly set out the legal boundaries
Technology Act 2000 (India ITA), an within 36 hours upon on the dos and don’ts for online
intermediary shall not be liable for receiving actual knowledge intermediaries that provide third-party
any third-party information, data, or in the form of an order from contents. This assures them that they
communication link made available or a court or notification from will not be held liable as long as they
hosted by him, if the intermediary merely an appropriate government have complied with the requirements
provides access to a communication authority regarding the under the law.
system over which information made prohibited information.14 Note
available by third parties is transmitted that additional due diligence What’s next for online
or temporarily stored or hosted, and the measures are imposed on intermediaries in Malaysia
intermediary had observed those due significant social media in light of the Malaysiakini
diligence measures set out in the India intermediaries15 and inter- case?
ITA and applicable guidelines.12 However, mediaries in relation to news With the Malaysiakini case, online
if the intermediary, upon receiving and current affairs content.16 intermediaries caught under s 114A(1)
actual knowledge or being notified of the EA may find it harder to rebut
by the government agencies that any (b) Publishers of news and current the presumption of publication of
information, data or communication affairs and publishers of online prohibited contents published by third
link residing in or connected to a curated content – publishers parties on its platform, as it may not
computer resource controlled by the must observe and adhere to be sufficient to claim that they are not
intermediary is being used to commit the Code of Ethics laid down in aware or do not have actual knowledge
the unlawful act, the intermediary the Appendix when publishing
12 Information Technology Act 2000, s 79(1) and (2)
13 Information Technology Act 2000, s 79(3)(b)
14 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, r 3
15 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, r 4
16 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, r 5
17 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, r 8
12of the alleged prohibited contents. It may be useful for online
Online intermediaries may need to intermediaries to seek guidance
furnish stronger evidence to rebut the f rom other jurisdictions such as India
presumption of publication under s and the UK when developing new
114A(1) of the EA — for example, what measures or strengthening existing
preventive and active measures that measures for purposes of preventing
have been taken to prevent the alleged third-party users or subscribers f rom
prohibited contents being published publishing offensive or illegal content,
by third-party users or subscribers in order to avoid being made liable for
on its platform, and whether there is such prohibited contents published by
any system in place that is capable third parties. LH-AG
of detecting and will rapidly remove
offensive comments. About the author
Online intermediaries should be Lau Wai Kei (lwk@lh-ag.com) is an
cautioned that the following steps associate with the Technology, Media
(as taken by Malaysiakini) may not be and Telecommunications Practice and
sufficient: is part of a team headed by Teo Wai Sum.
(a) providing self-serving terms
and conditions as a caveat for
its own self-protection, which
provide warning to users
or subscribers that abusive
posting offending any law or
Teo Wai Sum
which create unpleasantness Partner (Corporate Advisory)
would be banned. Technology, Media &
Telecommunications
(b) installing a filter program E: tws@lh-ag.com
which disallows the use of
certain foul words only, but not
prohibited contents, postings
or comments.
(c) implementing a peer reporting
system, which allows other
users or readers of the
online platform to report on
prohibited contents, postings
or comments; and only upon
the receipt of such report,
will an editor of the online
intermediary examine and
decide on the removal of the
same.
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