Monthly Archives: August 2012

Let’s Get hIP 2012

I will be moderating this talk on recent substantive changes in the arena of Intellectual Property (“IP”) legislation and case law, which include “Safe Harbour” provisions, registration of works and its impact on protection and enforcement, expedited registration process, new mechanisms in enforcing a Trade Description Order (“TDO”), introduction/revisions to procedural steps in protection of registrable IP rights, and many others.


Click for large image

Govt stealthily gazettes Evidence Act amendment, law is now in operation

I was quoted by Digital News Asia on what internet users and website owners should do in view that the Evidence (Amendment) (No. 2) Act 2012 is in force.

A. Asohan
Aug 08, 2012
  • Controversial law has been in effect since July 31 after ‘stealth’ move by Govt
  • Civil society continues its struggle to see the law revoked

THE Malaysian Government has gone ahead to gazette a controversial amendment to the Evidence Act 1950 despite the objections and concerns of the online community and civil advocates, who have said it would have a chilling effect on freedom of expression.

Section 114A to the Evidence Act was gazetted by de facto Law Minister Mohamed Nazri Abdul Aziz and has been in operation since July 31, according to a notification on the Attorney-General’s Chambers website(Click here for the PDF documentation).

“The law can be enforced now,” said Masjaliza Hamzah, executive director of Center of Independent Journalism (CIJ) in Malaysia, which has been spearheading efforts to see the legislation revoked.

However, she noted that even if a law has been gazetted, it may be impossible to enforce it if those who are responsible for it are not trained and are not ready to implement it. “This was the case with the Domestic Violence Act which was passed and gazetted in 1994, but was not implemented until 1996 after women’s groups campaigned to put pressure for that to happen,” she added.

Law Minister Nazri gazetted the law despite his own deputy Datuk V.K. Liew conceding in June that more discussions were needed after the CIJ had handed him a petition with more than 3,000 signatures.

“Sometimes, laws can be gazetted quietly — unnoticed, you could argue it’s almost by stealth — and we only know they exist when they are implemented,” Masjaliza told Digital News Asia by email.

“Many people in Selangor and Federal Territory did not know that Muslim women cannot contest in beauty pageants under the Syariah Criminal Offences (SCO) laws until five young women were arrested for taking part in a Miss Petite contest.

“The fatwa banning this was gazetted and therefore can be enforced under the law and these women were arrested for breaching a fatwa. It was only at that point that people heard that there was the SCO Enactment in Selangor and the SCO Act in the Federal Territory, and that they apply to Muslims in those states,” she added.

Section 114A, otherwise known as Evidence (Amendment) (No. 2) Act 2012, was passed by the Dewan Rakyat and Dewan Negara in April.

Under Section 114A, an Internet user is deemed the publisher of any online content unless proven otherwise. It also makes individuals and those who administer, operate or provide spaces for online community forums, blogging and hosting services, liable for content published through their services.

“This presumption of guilt goes against a fundamental principle of justice – innocent until proven guilty — and disproportionately burdens the average person who may not have the resources to defend himself in court,” the CIJ has said.

“The amendment’s wide reach will affect all Internet users, websites which provide space for online comments, and any business premises which give free Wi-Fi access to their customers.

“In addition, the new amendment was passed despite the fact that existing laws — including the Computer Crimes Act 1997, Sedition Act 1948, Defamation Act 1957, and Section 233 of the Communications and Multimedia Act 1998 — have been used to arrest and charge in court those who commit defamation, criminal defamation, fraud and sedition online,” it said.

Govt knows best?

Malaysia’s law-making process can be very opaque and undemocratic, Masjaliza lamented.

“People who are affected by these laws — and we are many — are not consulted at all during the drafting process. We have no idea there’s a draft bill coming, and some of us may hear about it only when it’s discussed in Parliament, and only if the media covers it,” she said.

“Then there’s a period of silence. Are Malaysians expected to go to the Attorney-General Chambers’ website every day to check if any laws have been gazetted recently and see how they apply to them?

“This is what happens when the ruling government doesn’t believe in meaningful consultation with the public before they enact any law,” she added.

After a furore earlier this year over amendments to Elections Offences Act, later revoked, the Malaysian Government promised that public consultations would be the order of the day for future laws.

“It sounds a bit hollow … now,” said Masjaliza. “Who will be consulted? Will it be a select few? How comprehensive is that process going to be?”

Lawyer advises caution

Meanwhile, a lawyer who has been monitoring the issue has advised caution on the part of Internet users and website owners.

Users must ensure that their Internet connection or devices are properly secured, said Foong Cheng Leong, co-chair of Kuala Lumpur Bar Information Technology Committee.

“They should also frequently update their anti-virus software, use strong passwords and refrain from retweeting or republishing anything dubious or unverified,” he said.

“As for website owners, they may want to consider monitoring their comments,” he said.

Foong said that website owners may want to:

1) Disable anonymous users from posting any comments.

2) Revise the terms and conditions for use of their websites, to perhaps include an indemnity clause to compel the user to indemnify the website owner in the event of any damages. They may also choose to include a clause prohibiting users from posting comments relating to religion, politics, etc. and that anyone who does that will be banned or have his or her posting removed.

3) Remove Facebook’s comments function as website owners do not have control over the contents posted.

4) Only allow registered users who have provided all their personal details to post comments.

5) Owners of low-traffic websites may consider reviewing comments before allowing them to be posted.

6) High-traffic websites (e.g. forums) may consider appointing someone to monitor or track all postings. Alternatively, they can have a user rating system where users can rate whether a posting is offensive and if so, it gets suppressed/ removed. YouTube has this function.

“The registered account holders of Internet services [such as UniFi] may want to reconsider sharing their Internet connection with others,” Foong added.

Internet Blackout Day still on

Despite the gazetting of the law, civil society is going to go ahead with the “Internet Blackout Day” for Aug 14 which aims to create awareness among Internet users about the negative impact of the amendment on online expression.

Taking its cue from similar efforts in the United States and New Zealand in support of Internet freedom, on that day, Internet users who visit participating websites will see a pop-up window which contains the message of the campaign. In addition, Netizens can change their profile pictures/ avatars on Twitter and Facebook to black, or use downloadable images provided by the CIJ.

“We [still] hope to get a buzz around Section 114a and how it’s going to affect the average Internet user, and urge people to do something. We must do something, even if the law’s been gazetted,” said Masjaliza.

“Once a critical mass is aware of the law and its implications on them, then it’s easier to get people to support actions under the ‘Stop 114A’ campaign,” she said.

“If more people are talking about this and are outraged that this was done without their knowledge, then we will have a good base of support for the next course of action,” she added.

Foong concurred. “It is not too late; we can always lobby for the repeal of the amendment. Please take part in the Internet Blackout Day initiated by the CIJ.”

The Internet Blackout Day has received positive response from the Internet community. Businesses which rely on the Internet such as the auction store lelong.com.my, online forum cari.com.my, and entertainment portal gua.com.my have signed up to show support, the CIJ said.

Other key supporters include online news sites such as Malaysiakini and Digital News Asia, bloggers such as Niki Cheong and Nat Tan. This initiative is also supported by civil society organisations such as SUARAM and the Women’s Aid Organisation.

For more information about the Internet Blackout Day and to take part in the campaign please visit:
1. The official blog at stop114a.wordpress.com
2. The Facebook page https://www.facebook.com/evidenceamendmentact.
3. Stop 114A’s Twibbon page for Twitter: http://twibbon.com/join/Stop-114A
4. Stop 114A’s Twibbon page for Facebook: http://twibbon.com/cause/Stop-114A/facebook

For additional information, please contact CIJ via e-mail at cijmalaysia@gmail.com or call +603-4023 0772.

Saifuddin backs repealing law that could curb Net freedom

Following the Stop 114A forum, the Malaysian Insider reported the following:-

Saifuddin backs repealing law that could curb Net freedom

UPDATED @ 11:28:17 PM 11-08-2012 By Ida Lim August 11, 2012

KUALA LUMPUR, Aug 11 ? Deputy Minister of Higher Education Datuk Saifuddin Abdullah today said he supports repealing the controversial Section 114A of the Evidence Act 1950, widely seen as an attempt to curb Internet freedom, despite the clause only being four months old.
The amendment to the Evidence Act, which was passed in Parliament on April 18 after it was first tabled on April 10, is now in force after it was gazetted on July 31.

“I am all for repealing Section 114A,” Saifuddin told reporters today, saying that there should be an alternative to the legal clause.

Earlier, the Umno supreme council member had spoken at a public forum on whether Section 114A signals the end of internet freedom.

“As a Barisan Nasional guy who supports democratic reforms and… a mature democracy, I take this as a hiccup,” he said.

The other forum panellists were lawyers Faisal Moideen, Foong Cheng Leong and K. Shanmuga.

Critics have pointed out that Section 114A is too broad and contains several weaknesses, such as assuming that an administrator of a website, or an owner of a computer, is the publisher of the content unless it can be proven otherwise.

They have also pointed out that the clause is important in cases involving defamation or the Sedition Act — which the government has promised to repeal.

Although Faisal acknowledged that part of the clause was too broad when it was drafted, he said that Section 114A does not create an offence or impose a presumption of guilt.
He argued the presumption of “fact of publication” is not enough to prove one guilty in court, saying “if other elements of the crime or claim is not proven, the claim will still fail.”

He conceded that “if it is a sole element of the crime, it could be a problem.”

Shanmuga pointed out the practical results of the clause, saying that the alleged publisher would have to spend money on lawyers and suffer reputation loss due to the presumption.

“To say we can go to court and disprove the burden doesn’t reflect the reality that will be faced by an ordinary man on the street,” he said.

He also said that the Parliament had passed the proposed law within a few hours although “this was not an urgent Bill”.

Foong claimed that Section 114A “is like a tool to beat Internet users up,” saying this doesn’t match with the BN administration’s move to appeal to the Internet crowd such as the use of social network site Twitter.

The forum was jointly organised by the Bar Council’s National Young Lawyers Committee (NYLC), Malaysian Centre for Constitutionalism and Human Rights (MCCHR) and the Centre for Independent Journalism (CIJ).

CIJ has slammed the clause for presuming guilt instead of innocence and for making service providers liable for hosting content published by others.

The Internet Blackout Day campaign launched by CIJ will take place on this August 14.

牵制互联网自由 赛夫丁支持废114 A条文

Following the Stop 114A forum, the Nan Yang reported the following:-

牵制互联网自由 赛夫丁支持废114 A条文

 2012-08-11 21:07

(吉隆坡11日讯)高等教育部副部长拿督赛夫丁博士今日表明支持废除1950年证据法令下增设的114A条文,因为此条文有牵制互联网自由之意。

将向首相传达

他说,巫青团长凯利也对这项于今年在国会下议院通过的修正法令有微言,所以他将跟凯利讨论此问题,再设法向首相拿督斯里纳吉传达。

赛夫丁今日在大马律师公会礼堂出席1950年证据法令114A条文论坛时,表达了本身的立场。

这项论坛是大马律师公会年轻律师委员会、大马宪法主义及人权中心(MCCHR)和独立新闻中心(CIJ)所主办的系列批判思维论坛之一。

赛夫丁是论坛主讲人之一,另3名主讲人是律师冯正良(吉隆坡律师委员会资讯科技委员会联合主席)、宪法及人权律师K山姆卡及律师费沙慕丁。主持人马哈乐朱米。

条文一“网”打尽

114A条文的重点在于“假设出版内容是事实”(presumption offact in publication),阐明网络或网站的主人、管理人、主机、编辑订户,或者电脑或流动设备的主人,假设出版或再出版其内容。

这项广义的条文,几乎“一网打尽”个人及商业电脑用户。

除了费沙姆丁持不同看法外,赛夫丁、冯正良和K山姆卡,都认为114A条文对互联网用户造成巨大的冲击。

赛夫丁说,他支持首相倡导的政府转型计划及政治转型计划,不过却认为114A条文是问题条文。

难向民众交代

他说,政府曾经承诺不会审查互联网,但现在却实施114A文条,因此他在向民众解说时也感到棘手。

他说,在反应民众和本身对此条文的立场时,也必须同时考虑其他替代的法令,以在互联网资讯和个人利益上取得平衡。

针对费沙姆丁指有关条文,将在资讯自由流通于个人利益之间取得平衡点,赛夫丁说:“能够平衡当然是好事,不过我不确定,我们是否做到平衡,还是失衡。”

若出版内容属实 难给答辩人定罪

律师费沙姆丁认为,证据法令114A条文并非创建罪行或施加有罪的假设。

他说,假设出版内容是事实(presumption of fact in publication),是可以被推翻的,这项假定不足于证明答辩人有罪。

“如果控方或起诉人无法证明罪行的其他元素,案件一样是不能够成立的。

从“后门”送人入狱“

我不否认,条文中的一些字眼过于广义,尤其是‘提供出版便利’(开设面子书户口)这点。”

K山姆卡说,根据有关条文,被告者必须证明自己的清白,是一种由“后门”送人入狱的做法。

冯正良视有关条文为攻击互联网使用者的工具。

14日互联网中断日

他说,为了抗议此条文,多个团体将在本月14日展开互联网中断日(InternetBlackout)运动。

国内一些组织认为,114A条文颠覆了“定罪前皆属无辜”的法律原则,这法令也可能被有心人滥用来陷害他人,特别是大选即将来临之际。

净选盟受促国庆 勿在独立广场办活动

赛夫丁在回应有关净选盟计划于国庆日前夕在独立广场静坐的问题时说,当晚民众都准备欢庆国家独立纪念日,所以他请求净选盟的成员不要在当晚在独立广场举行活动。

黄衣庆国庆引混乱

他说,如果当晚恰巧着黄色衣服前来庆祝国庆日,到时将会引起混乱。

“所以,我希望净选盟不要选择在国庆日前夕及同一个地点进行活动。”

律師:被控者需負舉證責任‧114A條文太廣泛存爭議

Following the Stop 114A forum, the Sin Chiew reported the following:-

律師:被控者需負舉證責任‧114A條文太廣泛存爭議
國內 2012-08-12 09:35

(吉隆坡11日訊)多名律師認為,2012年證據法令114A條文存在許多爭議,除了可能箝制互聯網言論自由、被控者需負上舉證責任外,該條文用詞上語義過廣,涵蓋範圍也過大。

在律師公會年輕律師委員會、獨立新聞中心及大馬憲法與人權中心(MCCHR)聯辦的“證據法令114A條文:互聯網自由的終結?"論壇上,邀請了多名律師與高等教育部副部長拿督賽夫丁擔任主講人發表對該條文的看法。

【新潮】你相信超自然力量嗎?她的照片帶有某種黑色力量…

馮正良:轉發留言或會惹禍

吉隆坡律師公會資訊工藝委員會主席馮正良指出,假設任何人利用他人電腦、互聯網戶口、wifi無限寬頻、部落格發佈違法內容,如涉及誹謗等,作為網頁設立與管理人,互聯網戶頭擁有者,就算有關內容未經同意或不知情,都會被視為內容發表者。

“一旦在114A條文下被追究責任,有關人士必須舉證證明自己清白,甚至如果你是轉發推特、面子書留言內容都可能惹禍。"他說,在此條文下,該條文範圍過廣,無論是民事或刑事案件,舉證的責任不再歸於原告與檢控官,而是必須由被告舉證本身沒在互聯網上發表任何涉及誹謗、中傷等內容。

他呼吁反對114A條文者,參與獨立新聞中心8月14日(下週二)舉辦“網絡黑屏日"(Internet blackout day)運動,表達不滿之聲。

山慕根:法令忽視匿名者駭客

律師、部落客及著名網站LoyarBurok創辦人K.山慕根作為論壇主講人之一就指出,114A條文的語句用詞不當,語義過廣,忽視了互聯網上存在許多匿名者,利用假戶口在留言、評論,以及存在互聯網騙案、駭客等問題。

“尤其是駭客,一旦駭入其他網民電腦或網絡戶口,利用他人的戶口進行違法事項,無辜者可能會成為代罪羔羊。"他認為,該條文可能會被有心人士尤其是匿名者利用來進行惡意攻擊,或成為過濾互聯網內容的“工具",因為有關人士可針對誹謗內容對特定單位提告,而被告本身證明本身沒發佈違法內容。

法依沙:推定事實非假定有罪

另一名主講者Moideen &Max律師樓合夥人法依沙律師認為,114A條文並不全然滿佈問題,該條文確實在字面上過於廣義,但該條文只是建立一個事實推定(presumption offact),並非假定有罪。

他指出,114A條文假定這個電腦與互聯網戶口既然在某人名下,那麼利用這些通訊器材發表的內容也是由該人發表。

(星洲日報)

Internet Blackout Day on Aug 14

I was briefly quoted by The Sun regarding Malaysia’s Internet Blackout Day.

Posted on 8 August 2012 – 09:50pm
Michelle Chun
newsdesk@thesundaily.com

PETALING JAYA (Aug 8, 2012): August 14 has been declared as Internet Blackout Day by the Centre for Independent Journalism (CIJ).

In a statement, CIJ said it is a bid against a recently passed law, whereby internet users are presumed guilty for content posted through their sites, registered networks or data processing devices.

On that day, internet users who visit participating websites will be met with a pop-up window detailing information on the campaign, but will still be able to access the website, CIJ executive officer Masjaliza Hamzah said.

“Images from the CIJ website and Facebook page can also be downloaded while users can also change their profile pictures to black for the day.

“The day aims to create awareness among Malaysians on the recently passed Evidence (Amendment) (No. 2) Act 2012, which will have a negative impact on freedom of expression online,” she said.

She urged netizens to call on the government to withdraw the amendment which saw the insertion of Section 114a of the Act that states an internet user is deemed the publisher of any online content unless proven otherwise.

KL Bar Information Technology Committee co-chairman Foong Cheng Leong told theSun it is timely to highlight the effects of the law as the awareness level is still low.

“This is an opportunity for internet users to make a stand on this law,” he said, adding that it was not too late.

Suara Rakyat Malaysia (Suaram) executive director Nalini E said Suaram supported the awareness campaign to pressure the government to remove Section 114a.

“The section is unnecessary and can be misused against anyone, and it also goes against the fundamental principle that one is innocent until proven guilty,” she said when contacted.

Siri Pemikiran Kritis | Section 114A of the Evidence Act 1950

I will be speaking at this event jointly organised by the Bar Council National Young Lawyers Committee, Malaysian Centre for Constitutionalism and Human Rights (“MCCHR”) and Centre for Independent Journalism (“CIJ”).

Topic: Section 114A of the Evidence Act 1950
Date: 11 Aug 2012 (Saturday)
Time: 10:00 am
Venue: Raja Aziz Addruse Auditorium, First Floor, Bar Council, No 15 Leboh Pasar Besar, 50050 Kuala Lumpur

The purpose and intent of the forum is to have a general and critical discussion on the operation of section 114A, which was inserted by the Evidence (Amendment) (No. 2) Act 2012.

The forum will feature Faisal Moideen, Member of the Bar and Former Protection Assistant of United Nations High Commissioner for Refugees (“UNHCR”); Foong Cheng Leong, Member of the Bar, Co-Chairperson of the KL Bar Information Technology Committee and blogger; K Shanmuga, Member of the Bar, one of the founders of LoyarBurok and a mover for UndiMsia; and Dato’ Saifuddin Abdullah, member of UMNO Supreme Council, Deputy Minister of the Ministry of Higher Education and Member of Parliament. The session will be moderated by Mahaletchumi Balakrishnan, Member of the Bar and former Co-Deputy Chairperson of the Bar Council Constitutional Law Committee.

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