Evidence Amendment (No.2) Bill 2012

Podcast: Onus is on you to prove your cyber innocence

I was interviewed by Malaysiakini in their podcast recently on the Evidence (Amendment) (No. 2) Bill 2012.

For our 15th Middle Malaysia podcast, we speak to Foong Cheng Leong, co-chair of the KL Bar IT Committee, about the new amendments to the Evidence Act. It was Foong who first broke the news about the new amendments via an article on the LoyarBurok blog.

He says the article at first didn’t garner much attention. That all changed when theSun published a front-page article based on it. Now, everyone’s talking about the serious implications of the new amendments.

Foong gives a broad overview of what the new law is all about and explains why it should be of grave concern for all those who use the Internet. He also gives his opinion on different social media scenarios where the Evidence Act could be applied.

His concerns, however, are not just on how this new law could affect criminal and politically-charged cases but also civil cases.

Lastly, he gives an example of how this law could affect cases concerning election offences and gives a real-life example of a past case that probably would have turned out very differently had the new law been in place then.

Foong, who often comments about IT issues, is totally against this law and is working towards having it repealed.

Lets Talk – Amendments To The Evidence Act 1950

I was recently interviewed by The Malaysian Observer.TV (also known as www.mobtv.my), an internet TV portal. You can see the video below.

The new amendments to the Evidence Act 1950 that Parliament passed in April might force an innocent party to show that he is not the publisher. Vicims of stolen identity or hacking would have a lot more problems to fix, and it is dangerous to put the onus on Internet users, said Foong Cheng Leong, a lawyer/blogger.

Watch the video here.

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.

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