114A Evidence Act 1950

Lawyers: Act will result in more cautious Net users

I was quoted in The Star’s recent article on the amendments of the Evidence Act 1950.

PETALING JAYA: The newly-amended Evidence Act will potentially result in a wave of more cautious Internet users, say lawyers, as the onus is now on the person to prove they did not post or create offending material.

If one is hauled up, however, maintaining innocence might prove to be tricky unless Internet users are more thorough with safety measures, they said.

“Witnesses or documents would suffice, depending on circumstan­ces.

“However, if you’re a website owner and someone posts such comments, there’s no way out,” said KL Bar IT Committee co-chairman Foong Cheng Leong.

Foong advised Internet users to secure their WiFi connection, frequently update their anti-virus software, use strong passwords and refrain from retweeting or republishing anything dubious or unverified.

“Or, you could stop using the Internet and start sending snail mail,” he commented, tongue-in-cheek.

Lawyer and activist Edmund Bon said that in the case of anonymous comments, there was al­ways the option of tracking IP addresses.

WiFi providers caught between Evidence Act, DBKL

Following from the forum “Section 114A Evidence Act: Crime-busting or Online Control?” organised by Centre for Independent Journalism (CIJ), Malaysiakini reported the following:-

WiFi providers caught between Evidence Act, DBKL
By Koh Jun Lin

Operators of the bigger Kuala Lumpur eateries might as well surrender to the authorities once Section 114(a) of the Evidence Act takes effect.

It would be too risky for them to offer WiFi services to patrons, said BFM radio producer Jeff Sandhu (left) .

This is especially in view of KL City Hall’s announcement in January that food operators occupying premises bigger than 120 sq m must offer WiFi services as a prerequisite for licence application and renewal.

“If you are running a restaurant in Kuala Lumpur and, by law, you are required to have public WiFi, you might as well walk to jail or walk to the cops and say ‘Arrest me!’” said Sandhu.

Sandhu, who produces BFM’s ‘Tech Talk’ segment, was a panelist at a forum last night to discuss the impact of Section 114(a) of the Act.

The amendment would presume that the owner, editor or administrator of a website on which any posting appears – or the owner of the Internet connection or equipment with which the posting was made – is also the person who made the posting, unless it is proven otherwise.

Another panelist, Digital News Asia co-founder A Asohan (right) , said Malaysia has a thriving Internet business scene.

Investors believe this could outpace that of Singapore, but the amendments would put a damper on it, he said.

“You can’t have an Internet economy when people fear for the Internet. You can’t have a high-income nation when people fear to express themselves,” he said.

He also quoted management consultancy firm McKinsey & Company as saying that Internet businesses contribute 4.1 percent to Malaysia’s GDP.

“You want to create a high-income nation. How do you do that? You need have people who are intelligent, educated in the right way – not merely drilled in the basics of science, maths and (who) just answer the questions,” Asohan said.

“A lot of our students are finding this extra knowledge through the Internet. They are willing to express themselves through the Internet… you need to get out of the school system to learn all these things.”
Responding to moderator and The Nut Graph editor Jacqueline Ann Surin, he said online media platforms would be the first victims of this law.

“Let’s face it, we’ve got how many thousand cybertroopers out there? They could just go and disturb all these sites. Now they can have a field day, go into Free Malaysia Today, post something, and the police would say, ‘Ha, got you!’”
‘Easy to forge identities’

Sandhu pointed out it is very easy to forge identities online, and that there is even a 10-step guide available online on how to impersonate another person’s email address.

“It puts the average Internet user at the mercy of the unscrupulous tech-savvy user. It is shielding identity thieves and hackers,” Asohan said.

“The victims are now the guilty, and there is no onus for the government to go after those who steal your identity, post things in your name, hack accounts, do stuff with it.”

KL Bar IT committee co-chairperson Foong Cheng Leong said it would be difficult to handle even the “rebuttable presumptions” once a person is charged.

“You go to court (with a civil suit). The fees are at least RM50,000-100,000 and you are there to defend against a High Court case as a normal, middle class, working citizen,” he said.

“How are you going to, first, get a lawyer. You also need technical assistance from someone who has technical abilities to look at all these modems, all these routers, and all these devices that you have to prove that it (the offensive posting) didn’t come from you.”

Foong said this would not even be possible if it were a criminal proceeding because the modus operandi of the police would be to confiscate the equipment.

“Once they take it from you, how are you access your own PC and show that ‘at this time I did not access anything’? The thing is lying somewhere in a exhibit room,” he said.

Foong said there is a need to deal with Internet trolls (people engaging in anti-social behaviour online), but the new law is not up to the task.

“We need something more technical. We need expertise to trace people online. The law is not the way to solve this. It is simply putting the blame on someone. In Chinese, we call this ‘eat the dead cat (being a scapegoat)’,” he said.

Centre for Independent Journalism director Jac SM Kee said the new law restricts freedom of expression and promotes a culture of surveillance. The media watchdog has started an online petition against the amendments.

Public Forum – Section 114A Evidence Act: Crime-busting or Online Control?

I will be speaking at the above event today.

The Centre for Independent Journalism (CIJ) is organising a public forum on the newly introduced Section 114(a) of the Evidence Act 1950 which has a huge impact on the average Internet user.

Our panel of experts will discuss the amendment and its implication on online expression and Internet rights, looking at it from the point of view of not just the average user but also the IT industry, especially upcoming technopreneurs.

Here are the details:

Section 114A Evidence Act: Crime-busting or Online Control?

Date: June 12, 2012 (Tuesday)

Time: 8pm – 10:30pm

Venue: KL Selangor Chinese Assembly Hall Auditorium, 1st Floor

The forum will look at the newly introduced amendment and its repercussions on Internet users, especially on the people’s rights to freedom of expression online.

Panel:

  • Foong Cheng Leong is the KL Bar IT committee co-chairman and member of the Bar Council Intellectual Property Committee. He regularly comments and writes on issues pertaining to social media and internet laws and the latest being “Grave Repercussions for Internet Users” published on LoyarBurok.com.
  • Jac sm Kee is a feminist activist working on the area of internet rights, feminism and sexuality. She’s the women’s rights policy coordinator for the Association for Progressive Communications, and one of the directors of CIJ.
  • Jeff Sandhu is producer for Tech Talk on BFM radio. Tech Talk is a technology segment dedicated to business owners, IT managers and the average user. This 30-minute segment from Mondays to Fridays has been on Malaysian airwaves for 3 years. Jeff comes from a multimedia design background, majoring in video and animation, and has worked in advertising and post-production.
  • A. Asohan spent 20-plus years with The Star, Malaysia’s No 1 English daily, mainly with the paper’s technology pullout In.Tech and with its digital or online media operations. In 2010, he left to take over as the Senior Public Relations Manager at Microsoft Malaysia, but returned to journalism recently to formDigital News Asia, a technology news portal, with two others.

 

Black day for Internet users

I was quoted in an article by Centre for Policy Initiatives, a non-profit policy reform organisation regarding the Evidence Amendment (No.2) Bill 2012. The article was later published in the Malaysian Insider.

The Evidence (Amendment) (No.2) Act 2012 will come into operation in a few days on June 1. The impact of this hastily and stealthily rushed legislation could be devastating.

De facto law minister Nazri Abdul Aziz denies that amendments to the Evidence Act were a means for the government to curb online dissent by making Internet anonymity more difficult to maintain or ignorance to be used as an excuse.

Instead Nazri claims that the law was tightened because “we don’t want [anonymous or pseudonymous] people to slander or threaten others,” according to a report in the Sunday Star.

However opposition leaders such as DAP secretary-general Lim Guan Eng are unconvinced.

Lim said that the amendment which was passed during the last sitting of the Dewan Rakyat and the Dewan Negara “will make it easier for the government to launch selective prosecutions of members of the opposition and civil society”.

According to him, a person is traditionally presumed innocent until proven guilty but the Evidence Act 2012 reverses this truism. Lim illustrates with a personal example: “In other words, I am responsible for anything posted on my website and the burden is on me to prove my innocence, not on the prosecution to prove my guilt”.

Lim also believes that the BN government would practise double standards in exercising the provisions of this legislation.

His misgivings are not entirely without basis, bearing in mind the several occasions when Malaysian authorities have been accused of filtering politically sensitive sites and most recently interfering in the Astro rebroadcast of BBC and Al-Jazeera’s live coverage of the Bersih 3.0 rally.

Nazri’s statement, “Under the amended Act, we shift the burden to the owner of the laptop or account so that we can get to the source [of the slanderous or seditious comments]”, prompted the Malaysian Bar to also express concern with regard to the presumption of guilt contained in the Act.

Internet Society Malaysian Chapter chairman Julian Vincent has pointed out that the amendments could be open to abuse by the investigators.

“In the internet environment where the websites even of the largest organisations are susceptible to hacking and manipulation, it is dangerous to have this presumption [of guilt] in place.

“The society expresses its hope that the cabinet will revise the current text and work to address privacy considerations and protect citizens’ rights and civil liberties in any future cyber security legislation,” he said.

Internet users across the board have criticized the amendment as unfair, concurring with the expert views that websites and social networking accounts (Facebook, Myspace, etc) or even e-mail could be easily hacked to post defamatory comments.

Despite the assurances by Nazri, an outspoken minister in the Prime Minister’s Department, the Netizens active on chat forums – as well as those who frequently forward chain mail and are addicted to Facebook or Twitter – harbour deep reservations about this newly revised law.

As it is, bloggers, such as Mohd Nur Hanief Abdul Jalil and Chan Lilian (Lim Guan Eng’s aide), have not been spared investigation by state officers for lese majeste and sedition respectively.

The public unease plays against the backdrop of reader participation in the relatively more free-wheeling news portals as compared with traditional media which has been subjected to pervasive state control.

Centre for Independent Journalism executive officer Masjaliza Hamzah has termed the amendments as a threat to freedom of expression and media freedom.

“The amendments are clearly an indirect way to control online content as it makes online sites responsible for comments posted by readers; forget about disclaimers on the comment section.

“This may force some sites to stop the comment feature because having to vet comments themselves may become untenable, and if this happens, it has a huge impact on the interactive nature of online media favoured by readers,” she is reported to have said.

Furthermore, Malaysia suffers the ignominy of appearing on the list of countries under surveillance as Enemies of the Internet, i.e. where authoritarian governments have employed censorship or filtering circumvention methods as well as systematic repression of Internet users.

The international watchdog body, Reporters Without Borders, had rated Burma, China, Iran, North Korea, Saudi Arabia and seven other countries as Enemies of the Internet in its RSF 2012 report.

The bottomline is that any repressive piece of legislation which can be misused by the powers-that-be to prohibit or curtail legitimate freedom of expression by its opponents is, in essence, a bad law. Should ever Pakatan Rakyat successfully occupy Putrajaya, they could just as easily turn the tables on the Barisan Nasional politicians and supporters by abusing this same law.

A lawyer-cum-blogger-cum-Tweeter Foong Cheng Leong dissects the presumption of fact relating to criminally libellous or seditious publication, explaining why repercussions for Internet users are indeed grave.

On the controversy surrounding the Act, Foong writes:

In summary, the new amendments force an innocent party to show that he is not the publisher. Victims of stolen identity or hacking would have a lot more problems to fix. Since computers can be easily manipulated and identity theft is quite rampant, it is dangerous to put the onus on Internet users. An Internet user will need to give an alibi that it wasn’t him. He needs to prove that he has no access to the computer at that time of publication and he needs to produce call witnesses to support his alibi.

His article can be read in full at the Loyar Burok website.

Finally, it is necessary to ask the Prime Minister Najib Razak the question as to why he has reneged on his word. Only last year he had repeated the Mahathir era promise made when Cyberjaya and the Multimedia Super Corridor were launched – that Malaysia will never censor the Internet.

The article stated that the Bill will be in force on 1 June 2012. I don’t think the Bill will be in force on 1 June 2012 but the Evidence (Amendment) Act 2012 [A1424] will be in force on 1 June 2012.

Amendment not justified, say groups

I was quoted recently in an article by The Star entitled Amendment not justified, say groups regarding the Evidence Amendment (No.2) Bill 2012.

PETALING JAYA: The amendment to the Evidence Act transfers the burden of proof to the accused, which is contrary to the principle of justice, said lawyers and Internet users.

“At any trial, whether criminal or civil cases, it is up to the prosecutor to prove guilt beyond reasonable doubt. Now the burden will be shifted to the accused to disprove (the allegation against them),” said human rights lawyer Edmund Bon.

He added: “All around the world where there is Internet any reasonable person would be against the posting of hate messages. But whether the Government should step in and take such control is another matter.”

Disputing that the amendment will bring more people to justice, Bon said that it will instead reduce the need for the police and other enforcement agencies to be thorough in their investigations.

He believed that current defamation and sedition laws were enough to curb offensive and criminal messages on the Internet.

Intellectual property lawyer and Kuala Lumpur Bar Information Technology Committee co-chairman Foong Cheng Leong said the amendment would be a source of harassment to people whose identities have been abused to send offensive or threatening messages.

“Say it is an elderly person who subscribes to the Internet and does not know how to secure his wifi account.

“If someone uses that unsecured wifi to upload all these offensive postings, it’s the elderly man who will get into trouble,” he said.

However, he agreed that it was difficult to trace the author of the offensive material, especially when international servers or public computers are used.

“But changing the law is taking the easy way out,” said Foong, who authored an extensive article about the amendment on the Loyar Burok website.

Meanwhile, many have tweeted their disapproval for the amendment, claiming that people would have to “flip over backwards to prove their innocence”.

At the same time, some have voiced their support for the amendment, especially those who have been on the receiving end of hate messages.

“These anonymous writers of hate messages against me are gutless and stupid.

“They help justify the Government’s proposal to amend the Evidence Act,” tweeted lawyer Roger Tan who had been criticised for writing a critique on the recent Malaysian Bar extraordinary general meeting.

Evidence Act amendments, a slippery slope

I was quoted recently in an article by Digital News Asia entitled Evidence Act amendments, a slippery slope by Edwin Yapp.

May 24, 2012

  • Evidence Act amendments allow for wide-ranging powers to go after netizens
  • From now on, you’re guilty until proven innocent

NEWS ANALYSIS The recent amendments made to the Malaysian Evidence Act 1950 have far-reaching consequences for everyone who interacts with the Internet, from Facebook users and bloggers to commentators on online news portals and even casual users.

And don’t think for a moment that you – the innocent netizen – is safe as long as you’re not the one writing potentially offensive comments or sending out material deemed to be seditious from an e-mail account you own, as the new amendments will hold you responsible either way.

According to theSun, changes to the passed Evidence (Amendment) (No 2) Act 2012 would hold Internet users liable for any content posted through their registered networks or data processing devices.

The amended law will have serious implications on Internet use as the owner of a site or device is presumed guilty and has to fight to prove his innocence, the daily noted, citing the concerns of civil society groups.

“What this means is, if an anonymous person posts content said to be offensive on your Facebook wall, or if someone piggybacks your WiFi account and uploads a controversial document, you will be immediately deemed the publisher of the content and subject to prosecution under the relevant laws such as the Sedition Act,” theSun noted in its May 21 report.

Minister in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz, while winding up the Bill in Parliament on April 18, had said the use of pseudonyms and anonymity by any party to commit cyber crimes made it difficult for action to be taken against them, theSun reported. Hence, he said the Evidence Act 1950 had to be amended to address the issue of Internet anonymity, it added.

The interpretation of the amendments to the Evidence Act 1950 was confirmed by legal experts Digital News Asia spoke to.

Foong Cheng Leong , Kuala Lumpur Bar information technology committee co-chairman, said the amendments introduced in Section 114A of the Evidence Act 1950 introduce three circumstances where an Internet user is deemed to be a publisher of content unless proven otherwise by him or her.

Syahredzan Johan (pic), chairperson of the Constitutional Law Committee of the Bar Council, concurred, noting that the amendments can be summarized as follows:

Firstly, if there is a publication, and a person has his name, photograph or pseudonym appearing on it depicting as him as the owner, host, administrator, editor or sub-editor or in any manner facilitating said publication, the person is presumed to have published it.

“So, if there is a newspaper, and the newspaper states that I’m the editor, then there is a presumption that I am indeed the editor,” Syahredzan told Digital News Asia in an e-mail interview.

Secondly, a person who is registered with a network service provider as a subscriber of a network service from which any publication originates is presumed to be the person who published or re-published the material.

“In this case, if I have a blog posting and the content is traced to originate from, say, Network Service Provider A, under my name, then there is a presumption that I am the one having published the blog,” he said.

Lastly, any person who has in his custody or controls any computer from which any publication originates is presumed to have published or re-published the content of the publication.

“For example, if there is a blog posting and the blog posting was traced to a computer under my custody or control, then I’m presumed to have published it,” said Syahredzan.

“All these presumptions are rebuttable because in all three examples, I can adduce evidence to prove the contrary. For example, in point three, I can give evidence that although it’s my computer, I was not in control of the computer at the time as I had allowed someone else to use it.”

Asked what were the implications of these amendments, Syahredzan said they would have the effect of reversing the burden of proof in both criminal and civil cases, as the amendments affect both kinds of trials.

He noted that in criminal proceedings, it is a significant departure from the accepted notion where the prosecutor is required to prove all the central elements of an offence before a person has to mount a defence.

“It is serious because if, for example, an owner of a computer can be made responsible for whatever information is contained in his computer, notwithstanding that the information could have been entered by a third party, the owner then has an evidential burden to prove his case.”

The Kuala Lumpur Bar’s Foong added, “Clearly, this is against our very fundamental principal of ‘innocent until proven guilty.’ With a General Election (GE) looming, I fear this amendment will be used oppressively.”

Broader implications
Legal ramifications aside, the amendments made to the Evidence Act 1950 also have chilling repercussions on individuals, corporations and civil society at large, said political scientist Ong Kian Ming.

Ong (pic) noted that firstly, the man on the street would probably be ignorant of this new piece of legislation, but he was quick to add that it would only take one case where someone, say, is investigated for an anonymous posting on his Facebook account, blog or website to spark awareness.

“This could increase the level of fear among the general public that he or she may be prosecuted for someone else’s comments,” the UCSI University political science lecturer told Digital News Asia in an e-mail interview.

As for corporations and enterprises, Ong said that they would have to be much more vigilant with regard to the kind of postings which appear on their websites and Facebook pages.

“Some may even take the extra step of asking their employees with company-sponsored mobile phones not to have any controversial apps or content in them.”

Ong pointed out that the danger of these amendments is that once this door is opened, the government may be tempted to use this law to go after political activists and politicians, even if it was not the original intention of the amendments in the first place.

He added that the amendments are particularly worrying for online news portals as they can easily be investigated for comments published by an online reader in response to certain articles which appear in these portals, and can be used as an excuse to shut down some of them.

Asked why he thought these amendments were made, especially when the GE is around the corner and must be called by April 2013, Ong said that the government does not seem to have made a strong case that this legislation will be effective in preventing cybercrime from happening.

“An example of the kind of cybercrime which this law intends to stop is the taking on of a fake identity in order to ‘fool’ others into revealing their personal information (passwords, account names) or to send money to them.

“But these kinds of scams can still originate from overseas. A better alternative is for the government to work with the private sector and to have a media campaign to raise public awareness about such cybercrimes instead of using such a blunt instrument that could be used against innocent individuals.

“With such a law in place, one cannot help but to think that it could be used to stifle genuine political debate during the upcoming GE by creating a culture of fear among those using the Internet,” Ong said.

Internet users cry foul over amendment to Evidence Act

I was quoted in The Sun Daily after my article “Grave reprecussions for Internet users”.

————————————

Michelle Chun
newsdesk@thesundaily.com

PETALING JAYA (May 20, 2012): The recently passed Evidence (Amendment) (No 2) Act 2012, whereby internet users are held liable for any content posted through their registered networks or data processing device, is both unfair and an attempt to put fear in people, says civil society.

The amended law will have serious repercussions on internet use as the owner of the site or device is presumed guilty and has to fight to prove his innocence, they say.

What this means is, if an anonymous person posts content said to be offensive on your Facebook wall, or if someone piggybacks your WiFi account and uploads a controversial document, you will be immediately deemed the publisher of the content and subject to prosecution under the relevant laws such as the Sedition Act.

Not only that, if a person starts a blog in your name and publishes content that is red-flagged, you will be considered the publisher unless you can prove otherwise.

All of this is provided for through the insertion of Section 114A into the Act which was recently bulldozed through both houses of Parliament in its last meeting with no debate.

Section 114A, which explains presumption of fact in publication, states:

– a 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.

– a person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

– Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved. (Computer here means any data processing device, including tablets, laptops and mobile phones.)

Kuala Lumpur Bar Information Technology Committee co-chairman Foong Cheng Leong told theSun these amendments would put fear in people.

“We shouldn’t even be discussing this law because it is based on the idea that one is presumed being guilty until proven innocent.

“Why does the owner of a site, or Facebook account, have to take the rap and prove his innocence while being subject to investigation and seizure of property?” he asked.

Minister in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz, while winding up the Bill in Parliament on April 18, had said the use of pseudonyms and anonymity by any party to commit cyber crimes made it difficult for action to be taken against them.

Hence, he said the Evidence Act 1950 had to be amended to address the issue of internet anonymity.

However, Internet Society Malaysian Chapter chairman Julian Vincent told theSun such amendments could be open to abuse by the investigators and force an innocent party to rebut the presumption of guilt at serious risk of wrongful prosecution and injustice.

“In the internet environment where the websites even of the largest organisations are susceptible to hacking and manipulation, it is dangerous to have this presumption in place.

“The society expresses its hope that the cabinet will revise the current text and work to address privacy considerations and protect citizens’ rights and civil liberties in any future cyber security legislation,” he said.

Centre for Independent Journalism executive officer Masjaliza Hamzah said the amendments were a definite threat to freedom of expression and media freedom.

“The amendments are clearly an indirect way to control online content as it makes online sites responsible for comments posted by readers; forget about disclaimers on the comment section.

“This may force some sites to stop the comment feature because having to vet comments themselves may become untenable, and if this happens, it has a huge impact on the interactive nature of online media favoured by readers,” she said when contacted.

A blogger known as Obefiend added such amendments would make it difficult for people to prove their innocence because everything is hackable when dealing with the online world.

“There always is ambiguous evidence when dealing with electronic presence, which makes proving you are indeed not the publisher very tough,” said the blogger, who writes on Blog Serius.

“It’s very scary and distressing to know that if somebody uses my name, I am automatically presumed guilty and have to prove my innocence,” he said.

Grave repercussions for internet users

Published on LoyarBurok on 24 April 2012.

Dissecting the presumption of fact relating to publication in the controversial new Bill.

The Evidence (Amendment) (No. 2) Bill 2012 was one of the bills rushed and passed by the Parliament recently. Minister in the Prime Minister’s Department, Datuk Seri Mohamed Nazri Aziz, when winding up the Evidence (Amendment) Bill 2012, said the use of pseudonyms or anonymity by any party to do cyber crimes had made it difficult for the action to be taken against them. Hence, the Evidence Act 1950 must be amended to address the issue of Internet anonymity.

The amendments introduced s. 114A into the Evidence Act 1950 to provide for the presumption of fact in publication in order to facilitate the identification and proving of the identity of an anonymous person involved in publication through the internet. In simple words, s. 114A introduces 3 circumstances where an Internet user is deemed to be a publisher of a content unless proven otherwise by him or her.

Although it is stated that the amendment is to cover anonymous persons on the internet, the effect of the amendment is quite wide. You see, we, especially social media network users, generally do not use our real names on the Internet. We use nicknames and pseudonyms. Our home addresses do not appear on our account. We sometimes use fictional characters or even digitalized images of ourselves as our profile picture. All these are done to protect our own privacy. So, if none of my personal details appear on my account, does this mean I am anonymous? If someone’s identity cannot be directly ascertained from his account, I would think that he would be anonymous.

The new s. 114A(1) states that “A 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”. In simple words, if your name, photograph or pseudonym appears on any publication depicting yourself as the aforesaid persons, you are deemed to have published the content. So, for example, if someone creates a blog with your name, you are deemed to have published the articles there unless you prove otherwise. If you have a blog and someone posts a comment, you are deemed to have published it. If you have a Facebook page and an user posts something on your wall, you are deemed to have published it!

Subsection (2) provides a graver consequence. If a posting originates from your account with a network service provider, you are deemed to be the publisher unless the contrary is proved. In simple terms, if a posting originates from your TM Unifi account, you are deemed to be the publisher. In the following scenarios, you are deemed to be the publisher unless you prove the contrary:-

(1) You have a home network with a few house mates sharing one internet account. You are deemed to be the publisher even though one of your house mates posts something offensive online.
(2) You have wireless network at home but you did not secure your network. You are deemed to be the publisher even though someone “piggybacks” your network to post something offensive.
(3) You have a party at home and allows your friends to access your PC or wireless network.You are deemed to be the publisher even though it was a friend who posted something offensive.
(4) Someone use your phone or tablet to post something offensive. You are deemed to be the publisher.

As for subsection (3), you are presumed to have published a content if you have custory or control of any computer which the publication originates from. Here, you are deemed to be the publisher so long your computer was the device that had posted the content. So if someone “tweetjacks” you or naughtily updates your Facebook with something offensive, you are deemed to be the publisher unless you prove otherwise.

Admittedly, the amendments certainly saves a lot of the investigator’s time. It is very difficult to trace someone on the Internet. It will make prosecution for, among others, defamation, offences under the Communication and Multimedia Act 1998 and Computer Crimes Act 1997 and, election offences much easier. But it is not impossible to trace someone. There are many cases where perpetrators are caught and charged.

I do not see the logic to deem someone to be a publisher. If an investigator is unable to trace the anonymous internet user, then why should the innocent Internet user take the rap? The onus of proof should always be on the prosecuting side. In the English case of Applause Store Productions Limited & Anor v Grant Raphael [2008] EWHC 1781 (QB), the claimants were awarded £22,000 in damages against Raphael, an old school friend, who had created a false personal profile of the claimants on Facebook. The claimants convinced the Court that Raphael was the person who created the fake profile even though he claimed that he had a party at his house and someone in that party created the account.

In summary, the new amendments force an innocent party to show that he is not the publisher. Victims of stolen identity or hacking would have a lot more problems to fix. Since computers can be easily manipulated and identity theft is quite rampant, it is dangerous to put the onus on internet users. An internet user will need to give an alibi that it wasn’t him. He needs to prove that he has no access to the computer at that time of publication and he needs to produce call witnesses to support his alibi.

Clearly, it is against our very fundamental principal of “innocent until proven guilty”. With general election looming, I fear this amendment will be used oppressively. Fortunately, the amendment is not in force yet. I strongly hope that the government will relook into this amendment.

 

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