Online intermediary liability in Malaysia: exploring artificial intelligence as ‘game-changer’

• Main Author: Daud, Mahyuddin
• Format: Article
• Language: English
• Published: Malayan Law Journal 2022
• Subjects: K Law (General)
• Online Access: http://irep.iium.edu.my/101762/7/101762_Online%20intermediary%20liability%20in%20Malaysia.pdf; http://irep.iium.edu.my/101762/; https://www.lexisnexis.com.my/solutions/malayan-law-journal

It is a common position globally that intermediaries enjoy a certain degree of immunity from civil or criminal liability should they host illegal and harmful third-party content, subject to legal requirements such as takedown notices. Due to the advances in internet, an intermediary can turn to be a publisher and vice versa, making it complicated for the courts to determine its actual position and a ‘one size fits all’ inference may warrant injustice. This was the situation that the Federal Court of Malaysia in the 2021 case of MKini had to answer which carved a new narrative on internet intermediary liability for Malaysia. The purpose of this paper is to consider whether a publisher or content creator acting as an intermediary should be exempt from liability when a third party publishes illegal and harmful content on their sites. Through a comparative case analysis of Mkini, Delfi, Bunt and Godfrey, we questioned the legal defence set in the Communications and Multimedia Act 1998 (‘CMA’) and the Content Code that promises its subjects such immunity. Since such a promise for immunity is not a mere child’s game, we explore the potential use of artificial intelligence (AI) for a publisher as a proposed solution to minimise liability for third party publication.