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

(吉隆坡11日讯)高等教育部副部长拿督赛夫丁博士今日表明支持废除1950年证据法令下增设的114A条文,因为此条文有牵制互联网自由之意。

将向首相传达

他说,巫青团长凯利也对这项于今年在国会下议院通过的修正法令有微言,所以他将跟凯利讨论此问题,再设法向首相拿督斯里纳吉传达。

赛夫丁今日在大马律师公会礼堂出席1950年证据法令114A条文论坛时,表达了本身的立场。

这项论坛是大马律师公会年轻律师委员会、大马宪法主义及人权中心(MCCHR)和独立新闻中心(CIJ)所主办的系列批判思维论坛之一。

赛夫丁是论坛主讲人之一,另3名主讲人是律师冯正良(吉隆坡律师委员会资讯科技委员会联合主席)、宪法及人权律师K山姆卡及律师费沙慕丁。主持人马哈乐朱米。

条文一“网”打尽

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。

这项广义的条文,几乎“一网打尽”个人及商业电脑用户。

除了费沙姆丁持不同看法外,赛夫丁、冯正良和K山姆卡,都认为114A条文对互联网用户造成巨大的冲击。

赛夫丁说,他支持首相倡导的政府转型计划及政治转型计划,不过却认为114A条文是问题条文。

难向民众交代

他说,政府曾经承诺不会审查互联网,但现在却实施114A文条,因此他在向民众解说时也感到棘手。

他说,在反应民众和本身对此条文的立场时,也必须同时考虑其他替代的法令,以在互联网资讯和个人利益上取得平衡。

针对费沙姆丁指有关条文,将在资讯自由流通于个人利益之间取得平衡点,赛夫丁说:“能够平衡当然是好事,不过我不确定,我们是否做到平衡,还是失衡。”

若出版内容属实 难给答辩人定罪

律师费沙姆丁认为,证据法令114A条文并非创建罪行或施加有罪的假设。

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。

“如果控方或起诉人无法证明罪行的其他元素,案件一样是不能够成立的。

从“后门”送人入狱“

我不否认,条文中的一些字眼过于广义,尤其是‘提供出版便利’(开设面子书户口)这点。”

K山姆卡说,根据有关条文,被告者必须证明自己的清白,是一种由“后门”送人入狱的做法。

冯正良视有关条文为攻击互联网使用者的工具。

14日互联网中断日

他说,为了抗议此条文,多个团体将在本月14日展开互联网中断日(InternetBlackout)运动。

国内一些组织认为,114A条文颠覆了“定罪前皆属无辜”的法律原则,这法令也可能被有心人滥用来陷害他人,特别是大选即将来临之际。

净选盟受促国庆 勿在独立广场办活动

赛夫丁在回应有关净选盟计划于国庆日前夕在独立广场静坐的问题时说,当晚民众都准备欢庆国家独立纪念日,所以他请求净选盟的成员不要在当晚在独立广场举行活动。

黄衣庆国庆引混乱

他说,如果当晚恰巧着黄色衣服前来庆祝国庆日,到时将会引起混乱。

“所以,我希望净选盟不要选择在国庆日前夕及同一个地点进行活动。”

律師:被控者需負舉證責任‧114A條文太廣泛存爭議

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

律師:被控者需負舉證責任‧114A條文太廣泛存爭議
國內 2012-08-12 09:35

(吉隆坡11日訊)多名律師認為,2012年證據法令114A條文存在許多爭議,除了可能箝制互聯網言論自由、被控者需負上舉證責任外,該條文用詞上語義過廣,涵蓋範圍也過大。

在律師公會年輕律師委員會、獨立新聞中心及大馬憲法與人權中心(MCCHR)聯辦的“證據法令114A條文:互聯網自由的終結?"論壇上,邀請了多名律師與高等教育部副部長拿督賽夫丁擔任主講人發表對該條文的看法。

【新潮】你相信超自然力量嗎?她的照片帶有某種黑色力量…

馮正良:轉發留言或會惹禍

吉隆坡律師公會資訊工藝委員會主席馮正良指出,假設任何人利用他人電腦、互聯網戶口、wifi無限寬頻、部落格發佈違法內容,如涉及誹謗等,作為網頁設立與管理人,互聯網戶頭擁有者,就算有關內容未經同意或不知情,都會被視為內容發表者。

“一旦在114A條文下被追究責任,有關人士必須舉證證明自己清白,甚至如果你是轉發推特、面子書留言內容都可能惹禍。"他說,在此條文下,該條文範圍過廣,無論是民事或刑事案件,舉證的責任不再歸於原告與檢控官,而是必須由被告舉證本身沒在互聯網上發表任何涉及誹謗、中傷等內容。

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。

山慕根:法令忽視匿名者駭客

律師、部落客及著名網站LoyarBurok創辦人K.山慕根作為論壇主講人之一就指出,114A條文的語句用詞不當,語義過廣,忽視了互聯網上存在許多匿名者,利用假戶口在留言、評論,以及存在互聯網騙案、駭客等問題。

“尤其是駭客,一旦駭入其他網民電腦或網絡戶口,利用他人的戶口進行違法事項,無辜者可能會成為代罪羔羊。"他認為,該條文可能會被有心人士尤其是匿名者利用來進行惡意攻擊,或成為過濾互聯網內容的“工具",因為有關人士可針對誹謗內容對特定單位提告,而被告本身證明本身沒發佈違法內容。

法依沙:推定事實非假定有罪

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。

他指出,114A條文假定這個電腦與互聯網戶口既然在某人名下,那麼利用這些通訊器材發表的內容也是由該人發表。

(星洲日報)

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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