Applause Store Productions Limited & Anor v Grant Raphael

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.

 

Tweet at your own risk

Published in The Star Newspaper on 21 January 2010

The explosion in Internet-based social networking – fuelled by ease of DIY publishing – is throwing up new challenges, business and legal, to the online community.

THE year 2009 marked an important year for social media networking. It brought change to politics, society and business.

Many politicians set up their own Twitter accounts to connect with the masses.

Many companies – from multinational companies to our local restaurants – set up accounts on social media networking websites to publicise their business, and even to manage consumer complaints.

Malaysian company MOL Global Pte Ltd entered into an agreement with Friendster, Inc to acquire 100% of Friendster.

Also launched was Project Alpha, Malaysia its first online TV show about Malaysian bloggers.

Social media, designed to be disseminated through social interaction, is created using highly accessible and scalable publishing techniques, Internet-based applications that build on the ideological and technological foundations of Web 2.0 and allow the creation and exchange of user-generated content.

Social media can take many different forms, including Internet forums, weblogs, social blogs, wikis, podcasts, pictures, videos, ratings and bookmarking (Source: Wikipedia). Examples of social media networking websites or tools are Facebook, Twitter, LinkedIn and Friendster.

With social media websites rising in popularity, there are now more content generators on the Malaysian online community. Publishing content, once a technical and time consuming task, has been simplified; users merely need to enter text and click a button to publish.

Is Malaysian law able to cope with such changes?

The law governing online activities remains the same. Content generated through social media websites are still governed by laws on defamation, trade mark, copyright, and as well as the Computer Crimes Act 1997, Communi­cations and Multimedia Act 1998, and so on.

Internet users should be vigilant when posting updates, blog entries, tweets, comments and emails.

Even a 140-character limit tweet may get you into trouble. For example, Courtney Love, the widow of Kurt Cobain, was sued by her former clothes designer for defamation, invasion of privacy and inflicting of emotional distress for “an extensive rant” on Twitter about how she was billed for custom clothing.

Social media websites or tools have also been used to attack others. Some users think they can hide incognito behind the screen. However, some were unmasked and had to endure severe punishment.

In 2008, in the 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.

Back home, in July 2009, a former bank employee was charged with posting vile and indecent material in a blog with intent to annoy another colleague. He was fined RM8,000, in default two months’ jail.

Making a complaint against malicious users is now fairly easy and can even be done online – at http://aduan.skmm.gov.my, the website of the Malaysian Communications and Multimedia Commission’s (MCMC) complaints bureau.

In the face of severe punishments, malicious users will take all sorts of steps to keep their identity secret. They may use fake names and emails, proxy servers, and also install devices to ensure that their identity cannot be traced. However, they are not safe from the long arm of the law.

In the case of The Author of a Blog v Times Newspaper Limited [2009] EWHC 1358 (QB), a blogger sought an interim injunction in the English court to restrain Times Newspapers Ltd from publishing any information that would or might lead to his identification as the person responsible for a blog.

The blogger argued that his anonymity protected him against any action being brought against him. His application failed. The judge commented that blogging is a public activity and any right of privacy would likely be outweighed by public interest in revealing his activities.

Anything posted on the Internet will stay on the Internet. It will travel and be read by other people. Nothing is ever private on the Internet.

A clear example is the case where a former high school teacher in the US was forced to resign over photos and expletives on her Facebook page. The page had photos of her holding wine and beer and an expletive.

Although one may argue that it is one’s right of privacy to have one’s personal activities protected, the law does not prevent others from doing so.

Trade marks and trade names have also been highly abused in social media websites. Many users register their username using trade marks or trade names of other companies or individuals.

Companies have had to seek legal advice on the available courses of action in restraining such action or in obtaining such names back. This resulted in hefty legal fees and also time.

In combating such problems, Facebook gave trade mark owners the opportunity to register their rights to the username before the launch of personalised username and URLs. In doing so, Facebook had taken steps to avoid any lawsuits over trade mark.

Twitter on the other hand was not so lucky. A well-known US sports figure, St. Louis Cardinals manager Tony La Russa sued Twitter over an account created in his name.

The false account posted updates that gave the false impression that the comments came from La Russa. The suit said the comments were “derogatory and demeaning” and damaged La Russa’s trade mark rights. The case was eventually settled.

The year 2010 will be another interesting year. Internet-enabled phones and data plans are offered at an affordable rate. Users can now access the Internet through their mobile devices whenever and wherever they are.

It will be interesting to see what are the new tools for online social networking, and the new legal challenges for the online community.

> The writer is a young lawyer. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc.

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