Freedom of expression is a fundamental right that is embedded in the Federal Constitution of Malaysia under article 10. It is the right of every citizen to express their thoughts and opinions with restrictions not limited to defaming others or contempt of the court. Jurist Dworkin has explained the freedom of expression as each individual having a sphere of independent decision-making around moral issues is a precondition of democracy, and freedom of expression is inextricably linked to facilitating that sphere. Dworkin holds that as long as the right to free speech does not inflict physical danger on other people, they must have the right not only to say what they like but to express their position how they like.
However, how far does the freedom of expression go in the law when it comes to today’s available technologies? Unlike traditional printers or publishing companies, technological advancements such as social media and websites play a different role that includes a large number of third-party users. Back in the day, printing or publishing books or magazines that have the potential to defame others would hold the author or the publishing company liable. This is because the owner is aware of its existence and is aware that the article or content will cause others to be defamed. When it comes to a third-party website or social media platform, this is not the case.
In the recent Malaysiakini case, the Federal Court’s majority decision held that the owner is liable for defamation and contempt of court. What this case demonstrates is the role of an online intermediary and the liability that he bears. By relying on Section 114A of the Evidence Act; providing a platform for a discussion or engagement, a host or owner may be held liable if defamatory comments are made. They will be presumed to be the publisher until proven otherwise. The host’s knowledge and intent are no longer relevant in determining whether he or she will be held liable. As soon as such a comment or review appears on his page, the host or owner will be held responsible. The presence of the section not only makes the host liable, but it also imbues fear to freely express their thoughts or opinions. Not to say that leaving hate speech is encouraged, but any discussion that has the potential to turn critical will be halted. The public will not discuss or express themselves clearly on any current or hotly debated issues for fear of being held accountable.
Among online intermediaries, there is a fine line between freedom of expression and defamation. The onus is on them to ensure that such hate speech does not exist at any time or even after days and it should be anticipated by the host. To imply that intermediaries must take steps to prevent such comments from appearing on the site implies that, in addition to the filtering system, all other intermediaries with a comments section, including social media users, must provide round-the-clock supervision. That is a high threshold being set for a host, causing them to avoid such an engagement or topic.
In enacting free expression laws, everyone’s freedom in the society, as well as all forms of freedom must be given equal weight, value and consideration, simply because all humans are equal in their natural right to life and freedom. The only moral constraint on freedom of expression appears to be the socially negative duty, which is the natural duty of not impeding or threatening to harm, the life and freedom of others.
**The facts and views expressed are solely that of the author/authors and do not necessarily reflect that of the editorial board