Faisal Moideen

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.


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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.

‘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.

Saifuddin backs repealing law that could curb Net freedom

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

Saifuddin backs repealing law that could curb Net freedom

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

牵制互联网自由 赛夫丁支持废114 A条文

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

牵制互联网自由 赛夫丁支持废114 A条文

 2012-08-11 21:07








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








若出版内容属实 难给答辩人定罪


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









净选盟受促国庆 勿在独立广场办活动






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

國內 2012-08-12 09:35







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





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



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

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

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

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

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

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