Monthly Archives: October 2012

拉昔巴星:114A苛刻‧應有更多機制保護無辜

I was quoted in Sin Chew newspaper regarding the weakness of S. 114A Evidence Act 1950.

拉昔巴星:114A苛刻‧應有更多機制保護無辜
2012-10-24 08:22
布城23日訊)今年8月1日通過的證據法令114A條文,雖然經過總檢察署多次召開閉門會議討論,但仍無法消除各界人士對此條文的爭議。

應站在公眾立場考慮

【新潮】就像沒有一個女人會嫌自己瘦一樣,從來沒有一個男人會嫌自己的“小弟弟”過大。

大馬律師公會刑事法委員會主席拉昔巴星認為,檢察司應該站在公眾的立場考慮,而114A條文中應該有更多的防禦機制來保護無辜的人。

“但反過來想想,如果114A條文需要更多的保護機制以免錯誤使用的話,那為甚麼我們還要保留這樣的一個條文呢?”

他今日受邀在總檢察署主辦的114A研討會的發言時,提出上述看法。

總檢察署沒收財產(forfeitureof property)單位主任安森在回應其論點時多次強調,114A條文雖是以事實推定(presumption of fact),但若沒有其他證據支持,這也是無法入罪的。

他指出,事實推定並非法律新詞,根據基本常識判斷的情況也不只是應用在114A的情況中。

“像在一個人身上搜出大量毒品,我們也會推定他是販毒者。”

採用事實推定不恰當

對此,拉昔巴星反駁道,在114A中採用事實推定並不恰當,毒品不容易取得,栽贓嫁禍相當困難。

“但我們可以輕易地取得某人的手機發出誹謗性、煽動性言論陷害他人,而如果這個人根本不記得誰碰過自己的手機而無法找到時間證人,那他就被無辜冤枉了。”

他強調,資訊科技的發展如此迅速,設立114A條文是非常苛刻(Draconian)的。

針對拉昔巴星對114A的批判,他解釋,檢察司在收集證據時會考慮到當時的情況與背景才做出推斷。例如某人用電腦發出誹謗言論,但他所使用的電腦並非他專屬,那這項證據將非常薄弱,不足以提控某人。

“嚴峻的情況便需要採取苛刻的管制方法。”

瑪麗亞特:事實推定更易取真相

專精於知識產權與知識管理的律師瑪麗亞特認為,事實推定是為了更易取得真相。

“事實推定不是自動發生的,檢察司需要蒐集證據,確定器材的所有人後,才由被告舉證保全自己的清白。但就算某人被證實為發出訊息的器材的所有人,他也未必有罪。

單是這一項證明是無法讓他入罪的。”

但她指出,如果沒有114A條文的話,主控官同樣能夠援引114條文提控被告,而他們也能夠取得同樣的成果。

瑪麗亞特也是論壇的3名嘉賓之一,她認為大馬律師公會代表的立場強硬,但他們以公眾利益出發為考量,情有可原。

但她也認為,各方的爭議在於對114A條文有所誤解,他們必須詳細解讀整個證據法令,才能瞭解為甚麼要有114A條文。

“114A比114條文更明確,是因網絡上有人採用匿名方式犯罪而設的,但這項條文中並沒有列明只限用於資訊科技中。”

研討會分2部份進行

這場由總檢察署舉辦的研討會共分兩個部份進行,前半部為安森與扎布里講解114A條文的應用,以及數碼鑑證科無法找出電腦罪案兇手的困境,後半部則由三位論壇嘉賓針對114A的爭議發表看法。

研討會獲得來自律師、大學代表以及電訊服務供應商的響應,出席者近百人,會場幾乎座無虛席。

吳文徉:被告者難證明清白

出席研討會的律師吳文徉指出,以一名律師的立場來看,被告一旦被證實為通訊器材的持有者,如何證明自己的清白對他們而言是困難的,因為一般人大多不具法律常識。

而雖然無辜者事後可能因為證據不足而不被提控,事實推定指他涉罪的話,已經足以導致讓此人名譽受損。

馮正良:危害資訊科技發展
114A應取消或重擬

吉隆坡律師公會資訊工藝委員會主席馮正良認為,114A條文應該被取消或撤回重擬,因為它將危害資訊科技的發展。

他指,用戶創建內容(user-generatedcontent)的網絡平台依賴網民評論和留言來獲得瀏覽率,繼而獲得廣告收入。

他舉例,一家拍賣網站裡若有人蓄意誹謗某一個賣家,在114A條文下,該賣家可以向承載這個信息的網站提出訴訟,無辜的網站管理員就得舉證以保清白。

“誰還敢讓別人在自己網站上留言?被誹謗的人可能會趁機向較富有網站管理人要求賠償,而不是追究真正的誹謗者。”

馮正良也說,以往可以匿名留言的選項在許多網站都被取消了,若繼續推行這條例,網民恐怕會被迫提供更多個人資料,才能註冊成為網站用戶來留言和評論。但這不會減低網站管理人惹官司的可能性。

“我們可以參考澳洲的版權法,即在可能被控上法庭前,發出警告,並賦予人們要求管理員撤下誹謗性信息,三次警告後就能採取法律途徑來解決。”

扎布里:檢舉網絡罪案
數碼鑑證不能找出‘兇手’

大馬電子保安機構(Cyber Security Malaysia)數碼鑑證組高級官員扎布里在114A條文研討會上說,在檢舉網絡罪案時,數碼鑑證不能當結論性證據,因為它只能找出“凶器”,而非找到“兇手”。

“找到發放誹謗性或不實信息的產品後,還要證明產品的主人就是發送者,這環節很困難,所以我們處理的7個網絡罪案訴訟中,有5宗個案是不成立的。”

他也說,該機構進行調查時有辦法取得用戶的瀏覽歷史、網絡談話記錄、緩衝文件(Cache File)及網絡帳號等。

可透過數碼鑑證證明清白

扎布里指出,有的人因為電腦中毒或遭駭客入侵,利用自己的電子產品或賬戶散播誹謗性言論而遭提控,也可以透過數碼鑑證來證明自己是清白的。

“一旦我們發現被告的電子產品有被外界入侵的跡象,我們將告知檢控官說證據太薄弱,建議他們不要檢控。”

他解釋,該機構在追縱信息源頭時,如果最後找到的是如網咖、嘛嘛檔或餐廳等公共的代理伺服器(Proxy Server),調查已經無法繼續。

“所以114A條文其實是檢察司最後的王牌,在我們無法繼續追查時,要求電子產品或網站的主人來證明自己清白,才不會讓網絡罪犯逃之夭夭,繼續幹案。”

(星洲日報)

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End to data abuse

I was quoted in The Sun Daily regarding the weaknesses of the Personal Data Protection Act 2010 (PDPA). Note that The Sun Daily also reported that the PDPA will be in force come 1 January 2013.

End to data abuse
Posted on 23 October 2012 – 05:24am
Pauline Wong
newsdesk@thesundaily.com

PETALING JAYA (Oct 23, 2012): Come Jan 1, you will be able to put an end to pesky telemarketers and report such harassment to the authorities.

This is because the Personal Data Protection (PDP) Act which criminalises unauthorised use of your personal data will finally be enforced after a two-year delay.

Information, Communications and Culture Minister Datuk Seri Rais Yatim told theSun recently that enforcement of the Act was held up due to a delay in the recruitment of personnel for the newly-formed Personal Data Department.

The department, which comes under his ministry, will oversee and be responsible for the enforcement of the Act.

“The department will be operational from Jan 1,” Rais said in an SMS reply to queries from theSun as to the enforcement of the Act which had been gazetted in June 2010.

The law stipulates how personal data – phone numbers, identity card numbers, addresses and even DNA – is used and stored by any organisation.

It defines “personal data” as any information processed in respect of commercial transactions that relates directly or indirectly to a “data subject” (the consumer), including any sensitive personal data.

Data users – including banks, telecommunications providers and even employers – must comply with seven principles.

Failure to do so will make the data user liable to a fine of up to RM300,000, up to two years’ jail, or both, upon conviction.

Once in force, the Act makes it a criminal offence for data users to reveal your phone number (for example) to third-party telemarketers, unless you had consented and were notified of their intention to do so.

The right to put an end to direct marketing is also provided for under the Act as a consumer may, by notice in writing, tell the data user to stop processing personal data for direct marketing.

He or she may also at any time withdraw any consent previously given to the data user.

However, legal experts point out that many aspects of the Act remain vague – which they say does not bode well for the wide-ranging impact of the Act.

Lawyer Adlin Abdul Majid, who heads the PDP compliance team at law firm Lee Hishammuddin Allen and Gledhill, said the Act is in need of more thorough guidelines before implementation.

“The Act was drafted in a very general manner. For example, even the definition of ‘commercial transaction’ is not specific.

“If someone goes to a small boutique and makes a purchase with a credit card, does this hold the boutique responsible for your data, and will it have to serve you a notice?” she said.

She added that in interpreting the law, employers are also considered data users.

“This could mean that even a small or medium enterprise (SME) with a few employees would have to adhere to the Act and conduct a privacy impact assessment to ensure full compliance, but that can be very costly for SMEs,” she said.

Adlin said the government needs to draft very detailed guidelines in enforcing the PDP, or it would lead to a lot of confusion.

KL Bar IT Committee co-chairman Foong Cheng Leong said the Act does not address several key problems, especially when it comes to storing a person’s personal data.

“With the digitalisation of records, the internet, and ‘cloud’ computing, the question is how does a data user deal with soft copies of personal information?” he asked.

He added that it is also not practical for data users to give written notice when data is collected over the phone, or captured via closed-circuit television (CCTV).

Foong urged the autorities to draw up specific guidelines to address these issues.

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Internet Freedom Under Threat in Malaysia?

I was interviewed by Asia Calling, a news portal produced by award-winning Indonesian radio news agency KBR68H since 2003. KBR68H is Indonesia’s first and only independent national radio news agency. Established in April 1999, today KBR68H produces 9 hours a day of information and education based programming to over 750 radio stations and 22 million regular listeners across Indonesia and Asia, making it by far the biggest radio network in the country.
 
Produced in English, Asia Calling is today translated into 10 Asian languages and broadcast by 321 radio stations throughout the region.

Tuesday, August 14th.

Listen

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Is Internet freedom under threat in Malaysia?

That’s the question many Malaysians are asking when a new section was introduced to the Evidence Act in April.

It basically creates a legal presumption that a person is the author of any content if it appears in his registered network or computer.

This means, a cafe owner could be hauled to court for publishing defamatory statements online even if he’s merely providing free Wi-Fi to customers.

Clarence Chua examines the implications that this new law may have on internet users in Malaysia.

Around 45 websites and popular blogs in Malaysia went black in protest as Abigail de Vries from the Center for Independent Journalism explains.

“To protest against this law we are organizing an internet blackout day. We are getting news sites, very prominent bloggers, one, either up-load a pop-up window that explains why this website is being blacked out or two, if you have Facebook or Twitter, to change your profile pictures to black.”

The new section 114A automatically assumes that a person is the publisher of any content as long as it appears in that person’s network or computer, unless the contrary is proved.

I met up with the Kuala Lumpur Bar Information Technology Committee Co-Chairperson Foong Cheng Leong at a recent forum on Internet Freedom.

He says the section shifts the burden of proof to the accused.

“There are 3 types of burden, they have shifted it. First of all is the website owners, publisher, they’re all the same thing. You’re deemed to be the publisher. And secondly is that if the content comes from your phone or your device, you are deemed the publisher. And the third one, if it comes from your internet account, then you’re deemed to be the publisher. So in normal law, if you want to assert something you have to prove it, now it’s the other way round. Now the defendant has to prove it.”

In other words, you’ll be held responsible if someone posts something on your Facebook wall or leaves a defamatory comment on your blog.

And the section is so wide that the presumption also applies to owners of cafes who provide free wi-fi to customers.

Foong says that’s bad for business.

“Websites make money through traffic. No traffic, no advertisement, no money. If you look at Facebook, all they provide is a platform. The contents are generated by users. And if Facebook wants to come to Malaysia, they won’t, because of this law. They surely don’t want to be liable to what their users say.”

Many free speech activists feel that the government is backtracking on its earlier promise not to censor the internet.

In the 1990s, Prime Minister Mahathir Mohamad launched the Multimedia Super Corridor or MSC to develope the country’s internet communication technology sector.

Fahri Azzat is from the NGO, Malaysian Centre for Constitutionalism and Human Rights.

“Mahathir said that there would be no censorship of the internet. This was subsequently reflected in the MSC Malaysia Bill of Guarantees, Item 6 where they actually said they wanted to be a regional leader in intellectual property and cyber laws. This has been statutorily encoded in the Multimedia and Communications Act, where in section 3(3) they even go and provide that no provision in that Act should be construed as allowing internet censorship.”

The government says this is necessary to combat terrorism and cyber crimes since the Internal Security Act, which allows detention without trial, had been repealed.

The controversial amendment was tabled by de facto Law Minister Nazri Aziz and was passed in April this year.

But Fahri Azzat says he fails to see the link between the new section and threat of terrorism.

Instead, he says that shifting the burden of proof threatens individual rights.

“The reason simply because of that, because it is about the protection of the individual against the state. That has always been the burden of proof; it is for the government to prove it. If there isn’t that necessity to prove, it opens the door for tyranny. And we usually do not have access to the machinery to do this, we do not have the funds to do this, we are almost as good as being convicted.”

But lawyer Faisal Moideen argues that the presumption of “fact of publication” is not the only element to prove one guilty in court.

“Even without this amendment, in any trial or proceeding the evidential burden will shift from time to time from the prosecution to the defendant, vice versa. It shifts the evidential burden. But even if you fail to other elements of the crime still must be proven and that burden remain with the prosecution, remains with the plaintiff. Malaysia is one of the more active users in social media, so it’s a timely law. I can understand the concern but being in legal practice, I look at it as a procedural matter. It doesn’t create a new offence. It doesn’t attach a liability, it’s only a presumption as to the fact of publication.”

One day after the Internet Blackout Day, Prime Minister Najib Razak directed the Cabinet to review the amendment.

But until it is repealed or amended, the accused still has to prove that he’s not guilty.

So is Malaysia planning to go back on its promise on internet censorship?

Judging from the number of blacked out blogs and websites many active Internet users certainly think so.
 

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Section 114A, Evidence Act 1950: Its Impact on Your Business

I will be speaking at Federation of Malaysian Manufacturers’ (FMM) event on 114A below.


Click on image for larger view

Understand the impact of Section 114A on your business and learn about network security and content filtering to protect your business.
Date : October 30, 2012
Time : 08:30 AM – 02:00 PM
Venue : Kuala Lumpur – Wisma FMM, Bandar Sri Damansara
Country : Malaysia

THIS SEMINAR IS FOR YOU IF YOUR COMPANY:
– Provides free Wi-Fi in its premise
– Opens its website to public comments, e.g. online forums
– Has e-commerce sites
– Engages with customers via social networks e.g. Facebook, Twitter and blogs
– Allows your employees to access, from office computers, social media sites or post comments on public forums

WHO SHOULD ATTEND
CEOs, Managing Directors, General Managers, IT Managers

DATE, TIME & VENUE
Tuesday, 30 October 2012 | 8.30 am – 2.30 pm
Wisma FMM, No. 3 Persiaran Dagang PJU 9, Bandar Sri Damansara, 52200 Kuala Lumpur

PROGRAMME

08:30 Registration
09:00 Opening Remarks
by YBhg Datuk Paul Low
FMM Vice President
Session 1: About Section 114A
09:10 Section 114A of Evidence Act, 1950
by Mr Lim Chee Wee
President, Malaysian Bar
09:40 Government’s Perspective of Section 114A Evidence Act 1950
by Attorney General’s Chambers*
10:10 Questions & Answers
10:30 Networking Coffee Break
Session 2: Section 114A and Your Business
10:50 Section 114A and My Business
by Mr Jahabar Sadiq
CEO, Malaysian Insider
11:20 Section 114A and Social Media Tools
by Mr Foong Cheng Leong,
Co-Chairman, KL Bar Information Technology Committee
11:50 Questions & Answer
Session 3: Protecting Your IT Network Against Section 114A Violations
12:10 Preventing Violations Against Section 114A Through Secured Cloud Gateway
by Mr KY Lee, Regional Director-ASEAN,Zscaler
12:40 Regain Visibility and Control – How to securely manage your workforce
by Mr Victor Lo, Senior Regional Manager, Technical Services, Trend Micro Inc.
13:10 Questions & Answer
13:30 Lunch / End of Programme

* invited

PARTICIPATION FEES
FMM Members: RM 200  |  Non-Members: RM 260
Includes lunch and refreshments

SPEAKERS’ PROFILE Download

For more information, please visit http://www.fmm.org.my/

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What the hack happened?

The Star quoted me in the following article on 19 August 2012:-

Sunday August 19, 2012

What the hack happened?
By LISA GOH
lisagoh@thestar.com.my

Losing your personal particulars to hackers can lead to financial losses, heartaches, loss of reputation – and sometimes friends, too.

IT starts out so innocently. A simple vote request by an acquaintance for a competition on Facebook; one click and law student Sharlyn J. discovers she has been hacked and locked out of all her social media accounts emails, Facebook, Twitter, Skype and MSN Messenger.

“I clicked on the link and a new window popped up. It looked exactly like Facebook – the colour and the fonts – but I didn’t double check the URL. That was my mistake.

“The site required me to type in my email address and password. I was a little reluctant at first but the girl kept pleading for me to vote for her so in the end, I did. Right after that, I knew something was wrong. I got locked out of all my accounts,” says Sharlyn, 19, of the incident last May.

If that wasn’t bad enough, within the hour, she received a text message that said “Hi Sharlyn. Your full name is , your IC number is , your IP address is , you are a student at college etc.” The hacker demanded money in exchange for getting her accounts back.

Gone in a second: It’s a nightmare for anyone who has discovered that his or her personal particulars have gone into the wrong hands.
“He/she even said I’m not asking for much, just RM300. You can report to the police, but there’s no point. I can’t be tracked.’

“That person had all my personal particulars. I was really freaked out. I had just started college and was living on my own. What if he had my home address as well?”

Failing to get a response from Sharlyn, the hacker then sent another text message, offering her a discount of RM150.

“I called my mum and told her what happened. I was really scared but I ignored him. I lodged a police report and opened new accounts the next day to tell all my friends to delete the old ones,” she says.

However, even weeks on, the hacker was still assuming her identity and chatting with her friends – as she found out later. She never got any of her accounts back.

In other instances, the identity thief doesn’t come to you for money. He goes to your friends, as local film producer Wendy Wong discovered.

Early last month, Wong sent her notebook for servicing. After getting her notebook back two weeks later, her problems started. When she logged into her email account, there was a prompt saying that the account was in use.

She didn’t think much of it, but then came phone calls asking if she was all right and if she was stranded in Spain.

Her email account had been hacked. Assuming her identity, the hacker emailed all her contacts to tell them she had lost her wallet and asked them to send money so she could settle her hotel bill in Spain. The hacker asked her contacts to send her RM10,929 (2850) via Western Union to an address in Madrid.

“I was in Kuala Lumpur all the while. Good thing some of my friends called me to check before sending money over. I had friends who were already planning to transfer the money,” Wong says, adding that she was alerted of the situation by an mStar journalist who had called her to ask if she was indeed stranded in Spain.

Several attempts to change her password failed as the hacker made repeated assaults on her account. Wong has since lodged a police report and alerted the customer service of her email account provider.

“This has affected my reputation. Those who know me well would know I would never go around asking people for money. But what about those I have just met, or are just starting a business partnership with? What would they think of me?”

For that reason, Wong held a press conference early this month to clear her name and to alert all her contacts of her predicament.

“It’s not so easy for me to just get another email address as that’s where my contacts reach me. But it looks like I don’t really have much choice now,” she laments.

When it comes to hacking and identity theft, the most important thing is doing everything you can to make sure it doesn’t happen in the first place. – Nigel Tan

Symantec Malaysia systems engineering director Nigel Tan says that when it comes to identity theft, more often than not, it’s an opportunistic crime, and it’s a two-step process.

“Someone steals your personal information, then uses that information to impersonate you to commit fraud. It’s important to understand this two-step approach, because your defences also must work on both levels,” says Tan, who is Symantec’s principal consultant for Asia South.

According to the Symantec Internet Security Threat Report for the year 2011, a total of 232 million identities were breached worldwide, and of that, 80.5% were by hackers.

In 2011, the Malaysian Communications and Multimedia Commission (MCMC) recorded a total of 199 hacking complaints, and six identity theft complaints. For this year up till Aug 9, MCMC recorded 141 hacking complaints, with no identity thefts as yet.

Under the law, hacking itself is an offence under the Computer Crimes Act 1997, says KL Bar Information Technology Committee co-chairman Foong Cheng Leong.

Section 4 of the Act, for example, finds “unauthorised access with intent to commit or facilitate commission of further offence” a crime, whereby a person convicted could be liable to a fine not exceeding RM150,000, or to imprisonment for a term not exceeding 10 years, or both.

Further offences, such as cheating, can be pursued under the Penal Code, Foong explains. Victims can also file civil suits if the perpetrator is known to them.

However, identity theft could prove to be more than a mere inconvenience for victims, in light of Section 114A of the Evidence Act 1950, as it holds the account owner responsible for any material published from his/her account, “unless the contrary is proved”.

This amendment to the Act, passed in Parliament in April this year, drew heavy objections from various quarters.

On Thursday, Information, Communications and Culture Minister Datuk Seri Dr Rais Yatim announced that the Cabinet has decided to maintain it.

Hacker’s victim: Wong is worried that her reputation may have been marred by the stranger’s doings.

But what drives hackers to hack and steal another person’s identity?

Where previously the motive would have been to gain fame, Tan says more often than not these days, it’s for financial benefits. Social media sites have also not been spared.

“Hackers want to get into the social media because they want to exploit that circle of trust. When you see an email or link sent by someone you know, you’re more likely to respond,” he says.

His advice?

“Never ever click on links. Open a new browser and type in the URL. If you get a phone call from a bank saying your account has some issues, and they require your personal information, hang up and call the bank directly and ask them if they really have a problem with your account,” he says. (Refer to chart for more Do’s & Don’ts.)

He also advocates using different passwords for different accounts and changing them regularly (once every 90 days is ideal). Using the two-factor identification facility (where both a password and a code sent to your mobile is needed to access an account) where available would also act as a deterrent.

“It’s important to understand how easily personal data is linked these days. Information that can be easily found on Facebook can include your place of birth, your mother’s name and other personal details. And these are usually the security questions banks use.

“Personal information flows so easily from one thread to another, and hackers are always waiting to exploit that,” he says.

And sometimes, it’s all a matter of being aware of the personal information you give out. “When a site or a person (even in legitimate circumstances) asks you for certain personal information, just stop and just ask yourself, Do they really need that information and am I comfortable in giving that information?’

Give it some consideration, and if you don’t think they do, then don’t give it. “When it comes to hacking and identity theft, the most important thing is doing everything you can to make sure it doesn’t happen in the first place.”

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‘Guilty until proven innocent’ law applies to Umno Youth in Facebook probe

I was quoted by Malaysia Insider on this article regarding the applicability of S. 114A of the Evidence act 1950 on the incident regarding UMNO Youth’s Facebook page.

‘Guilty until proven innocent’ law applies to Umno Youth in Facebook probe

By Ida Lim
August 22, 2012

KUALA LUMPUR, Aug 22 — The burden of proof is on Umno Youth to show that it is not the publisher of controversial remarks suggesting that a vote for Pakatan Rakyat (PR) will result in Christianity becoming the country’s official religion, due to recent amendments to the Evidence Act, lawyers have said.

Umno Youth has claimed that the person who put up the poster with the controversial remarks was “unauthorised” to do so and that the page was not its official Facebook page.

The poster, which was uploaded last Saturday and taken down the same day, appeared to suggest that votes for federal opposition Pakatan Rakyat (PR) will cause Islam to be replaced by Christianity as the country’s official religion.

It had read: “Jika anda setuju untuk jadikan KRISTIAN sebagai agama rasmi persekutuan Malaysia, teruskan sokongan anda kepada Pakatan Rakyat. (If you agree to make CHRISTIANITY the official religion of the federation of Malaysia, continue supporting Pakatan Rakyat.) ‘God bless you my son’.”

If Umno Youth is brought to court over the “unauthorised” Facebook post, it would be the test case for the newly-enforced Section 114A of the Evidence Act that has already seen widespread opposition from the public.

Section 114A makes even coffee shops offering free Wi-Fi services liable for any defamatory or criminal acts of customers using computers at their premises.

The new law creates a presumption that any registered user of network services is presumed to be the publisher of a publication sent from a computer linked to that network service, if he cannot show otherwise

The Section also provides that any “person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.”

Civil liberties lawyer Syahredzan Johan told The Malaysian Insider that Section 114A would impose a presumption that Umno Youth had published the poster, but notes that “this factual presumption is not tested in court” yet.

“But say, for whatever reason, Umno Youth is charged under the Sedition Act for promoting ill will between the Muslim and Christian communities, the factual presumption would operate,” Syahredzan said.

“All the prosecution would need to prove is that the Umno Youth is stated to be the owner or administrator of the Facebook page,” he said, noting that it is “quite easy to do so” as the page “represents itself as Umno Youth’s”.

Once that is proven, Umno Youth would be “presumed to be the publisher of the post” and would then need to “rebut this presumption”, he added.

“This is a perfect example of the absurdity and injustice of Section 114A in operation.”

The prime minister had on Twitter last week said his Cabinet would review the law after several organisations ― including the Malaysian Bar ― chose to black out their websites to signal their opposition to the law.

A day later, however, Information, Communications and Culture Minister Datuk Seri Dr Rais Yatim announced that the law will stay.

Foong Cheng Leong, the Kuala Lumpur Bar IT committee co-chair, agreed with Syahredzan, saying that “if we follow (Section) 114A, looking at subsection 1, it seems that the presumption of fact is that Umno Youth is the publisher of the poster.”

He said there is an “impression that it’s a legitimate Pemuda Umno page”, saying that the Facebook page, which has over 50,000 “likes”, features Umno Youth’s logo and the party president Datuk Seri Najib Razak’s photograph.

Foong said that Section 114A is unclear on a number of things, saying that it “does not say when the presumption is rebutted.”

“We don’t know if a police report is sufficient to rebut the presumption,” he said, saying that “we’re left at the unknown stage.”

“Can the media go and tell everybody that Pemuda Umno is the publisher of the poster? Can the media publish it as fact because in the law it’s presumed as fact?” he asked.

When asked if there was any law for Umno Youth to fall back on in court, the lawyer said there is “no exemption under (Section) 114A” and “the only thing they can do is come out with proof it’s not them.”

Lawyer Faisal Moideen shared Foong’s view, saying that “making a police report may not be enough because it seems to be a bare denial.”

However, he defended the law and stressed that it does not impose a presumption of guilt but only the presumption of fact of publication.

“At the end of the day, it doesn’t mean they have committed a crime,” he said, adding that “it takes more than just publication to make a person guilty.”

Based on his reading of the law, he said “you don’t have to show who did it, you have to show you didn’t publish it” to rebut the presumption.

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