KL Bar Information Technology Committee

Invitation to serve KLBC Information Technology Committee for term 2015/16

Dear Members of KL Bar and Pupils-In-Chambers,

The KLBC Information Technology Committee (“KLBC ITC”) for the term 2015/16 is calling for volunteers to serve on the committee which is established for:
• Promoting the use of IT by lawyers;
• Exploring new ways in which IT can improve members’ professional practice;
• Responsible for improving the communication of the KL Bar Committee with members on issues and concerns of members;
• Responsible for the enhancement of the IT system at the KL Bar Secretariat;
• Overseeing the management of the KL Bar Website (www.klbar.org.my) and all other Social Media network that it operates;
• Creating public awareness on Laws related to Information Technology;
• Professional Development Courses on Laws related to Information Technology for members;

The Projects for the term will be
• Revamping the KL Bar Website and Membership Management System
• Digitising the Petition Files
• KL Bar App

The inaugural meeting will be held on Monday, 16 March, 2015 at 6:00 pm at the KL Bar Meeting Room, 4th Floor, Wisma Hangsam, No.1 Jalan Hang Lekir, 50000 Kuala Lumpur.

The KLBC ITC is calling for volunteers who are keen to serve and promote the interests of your fellow members in the legal profession. If you are keen to serve, please email melissadass@klbar.org.my (latest by 12 March 2015). Please state your name and place of practice/pupillage as well as email address/contact numbers for easy reference.

Warm regards,
Foong Cheng Leong
Chairperson
KLBC Information Technology Committee

Malaysia’s data privacy Act slow to take off

I was quoted by ZDNet in their article “Malaysia’s data privacy Act slow to take off” on 5 February 2013. To date, our Malaysian Personal Data Protection Act 2010 is still not in force.


Summary: Country’s personal data protection Act was due to take effect last month, but is still pending formalities. Despite that, many companies do not appear to be ready yet.

By Liau Yun Qing | February 5, 2013 — 11:16 GMT (19:16 SGT)

Malaysia’s Personal Data Protection Act 2010 (PDPA) was due to take effect on January 1, 2013, but the law is still not in force due to legal formalities. Despite its impending introduction, many companies are still lacking in compliance while consumers doubt it will be strongly enforced.

Foong Cheng Leong, a Malaysian lawyer and co-chairman at Kuala Lumpur Bar Information Technology Committee, said despite the announcement by a minister that the act will take effect at the beginning of the year, it is technically still on hold as there needs to first be an official notification in the Government Gazette for the Act to be formalized.

In a report published in December 2012, Malaysian newspaper The Star cited deputy Information, Communications and Culture Minister Datuk Joseph Salang who said during a keynote the PDPA would be enforced on January 1, 2013 and companies will have three months to comply.

Malaysia’s law for personal data protection has been long in the making. The Personal Data Protection Bill was first drafted in 2001 and was expected to be in force in early-2010 but that did not materialize.

Despite the protracted lead up, many Malaysian companies are still not prepared for the eventual implementation of the law. Foong pointed out during his many talks on PDPA, he had noticed many companies have not started their compliance exercise.

Barry Ooi, president of the Marketing Research Society of Malaysia, said the Act will have a direct impact on the practice of market research in the country as it includes entities that process personal data. “All market research companies will need to be aware of the rules and regulations under this act,” he said.

Ooi pointed out most market research companies in Malaysia have been adopting the international research standards set by the World Association for Market, Social and Opinion Research (ESOMAR). “Many of the rules and procedures in the PDPA are similar to the ESOMAR guidelines,” he added.

“Nevertheless, our members are tightening up their procedures, particularly in the area of respondent consent and non-disclosure,” he noted.

Consumers lack confidence in enforcement of Act
Despite the government efforts, a few consumers in Malaysia were not confident about how the law would be eventually enforced.

IT systems engineer Ranjeeta Kaur said she knew that the country has such an act. However, she did not take much interest in reading the details mainly because of the lack of enforcement for most of the laws in Malaysia. “Enacting an act is simple but placing it into the actual corporate world and making sure that it’s followed is another story altogether,” she said.

“If we were to look at our daily Internet activities, most Malaysians don’t care about this Act. In fact they don’t even bother that the information they exchange with other parties could be leaked or used against them,” said Kaur.

Postgraduate student Chua Soon Hau questioned whether the Act would impact Internet companies such as Facebook or Instagram which were not based in Malaysia. “The Act will more likely tackle analytics companies that gather data and sell it to people who want it,” he said.

Chua wondered if the implementation of the law might even conflict with privacy agreements which users need to agree to before using a service.

Kaur said unlike the European countries, consumers in Malaysia were more “carefree” about their personal information. “Many folks are just happy to be given a computer and access the Internet with a carefree mind. We should actually be made aware of how our data is being handled, who is viewing it or has access to it,” she said.

Malaysia vs Singapore’s data privacy Act
Neighboring country Singapore passed its personal data protection billin October 2012 and was enforced in January this year.

Foong said while both countries’ personal data protection bill are similar, the details differ “quite a bit”.

The Malaysian law requires data collection parties to give subjects a written notification in the national language and English during the process. For Singapore, the notification is simpler as there is no rule the notification needs to be in the national language or English.

However, the Singapore Act requires the party collecting data to state the purpose for the collection, use or disclosure of the personal data, he noted. When requested, the party collecting data needs to give the business contacts of the person who is able to answer any questions the individual might have.

Foong added consent to process personal data is not defined in the Malaysian PDPA, while the Singapore law sets out in detail what amounts to consent and what type of consent is acceptable.

Anonymity, is your time up?

A. Asohan, my fellow comrade from the Stop 114A Committee, quoted me in his article in Digital News Asia regarding internet anonymity. I am an advocate of privacy rights and to me certainly would extend to online privacy. We now live in a world where enterprises are hungry for personal data to be exploited commercially. It can trace, among others, your habits, preferences and history.

Anonymity, is your time up?

 A. Asohan
Oct 26, 2012

 

Anonymity has a rich tradition and can be essential for some forms of online discourse

  • Yet it can be easily abused – should sites like DNA require identification for posting comments?

WE start, with a nod to Dickens, with a tale of two lawyers, both speaking about the contentious amendment to the Evidence Act 1950 that the Malaysian Government has bulldozed through.

The Government first said the law was formulated to bolster prosecution against online defamation and sedition – it later changed its tune to say it was to tackle terrorism and cybercrimes – by making it tougher for online commentators to hide behind anonymity.

[Further analysis of the wording in the legislation however suggests that it would actually encourage anonymity by making all parties up and down the online access supply chain legally liable and presumed guilty.]

In one forum discussion on the Evidence (Amendment) (No2) Act 2012, or Section 114A, Foong Cheng Leong, co-chair of Kuala Lumpur Bar Information Technology Committee, while acknowledging the mischief that anonymous commentators can cause, said that most Malaysians prefer to comment and engage anonymously.

“Clearly we all want to be anonymous online, in order to protect ourselves,” he said.

I was one of the panelists in that discussion, which was moderated by Jacqueline Ann Surin, co-founder and the editor of The Nut Graph. We had worked in The Star together, and I just muttered to her, “Not me,” and she nodded, “Not me either.”

Sure, we old-school journalists may not have understood the concept of personal branding in today’s online world, but we’ve always known about the value of our bylines. A journalist’s byline is our mark – it tells you who we are and what we stand for. Why would we want to hide it behind a shield?

We trust ourselves to be able to be critical without being defamatory, to be able to call a spade a spade without resorting to name-calling, to get to the heart of the matter without the need to insult.

In all my online interactions – whether it is on tech or political sites, whether it is on forums dedicated to role-playing games or my beloved and oh-so-depressing Liverpool Football Club, on my Facebook and Twitter accounts – I use my real name. My thoughts and what I believe in are part of my identity; they make up who I am.

So I never needed to shield myself behind anonymity. Not that I can’t see its value either. Another lawyer at yet-another forum discussion on Section 114A, K. Shanmuga, Member of the Malaysian Bar, pointed out that there is a rich and respected tradition of anonymity in political discourse, dating back a few centuries.

Without going into details, much of British political satire depended on anonymity – or more accurately, pseudonymity, where an assumed name or pseudonym was used instead of the author’s real name. In literature, women had to use male pseudonyms to be taken seriously, let alone get published.

The Federalist Papers, a collection of essays promoting the ratification of the US Constitution, was published anonymously, but was actually written by Alexander Hamilton, James Madison, and John Jay.

“Satirists such as Jonathan Swift and Alexander Pope published anonymously, often for legal and political reasons,” Robert Folkenflik, emeritus professor of English at UC Irvine, writes in theLos Angeles Times.

“Anonymity protected Swift from arrest when a reward was offered for the author of his Drapier’s Letters, pamphlets advising the Irish not to take copper half-pence from England. The novels of Daniel Defoe, Samuel Richardson, Laurence Sterne, Tobias Smollett and Fanny Burney were all anonymous,” he adds.

Whistleblowers and inside sources require anonymity to protect themselves when they reveal information of public interest, especially in Malaysia, where the authorities prefer to shoot the messenger rather than prosecute the perpetrator.

So, granted, anonymity has its place in discourse. But it should never be taken as an excuse to be a jerk. In many cases, anonymous online commentators take it as their due, and end up only proving John Gabriel’s “Greater Internet F***wad Theory,” pardon the language [or the asterisks, rather].

Not just in Malaysia, but throughout the greater online world, there has been a growing movement against anonymity – especially when there is no need for it. And yes, you can criticize the Malaysian Government and some of its decisions without being seditious or defamatory, as Digital News Asia founder Karamjit Singh did when he described the proposed Budget 2013’s RM200 smartphone rebate as stupid.

Social media networks like Facebook and LinkedIn have helped prepare us for this. When you think about it, social media loses at least half its value you don’t use your real identity.

Indeed, Facebook marketing director Randi Zuckerberg believes that putting an end to anonymity online could help curb cyber bullying and harassment.

“I think anonymity on the Internet has to go away,” she said during a panel discussion on social media hosted byMarie Claire magazine, The Huffington Post reports. “People behave a lot better when they have their real names down. … I think people hide behind anonymity and they feel like they can say whatever they want behind closed doors.”

Google began cleaning up YouTube’s comments section by encouraging users to post their real names, taken from their Google+ account — since Google requires the real name of someone signing up for a Google+ account,PCWorld reported.

Google’s former chief executive officer and current executive chairman Eric Schmidt has gone on record to describe online anonymity as “dangerous.”

“Privacy is incredibly important,” he said, adding, “Privacy is not the same thing as anonymity.” He went on to saythat “if you are trying to commit a terrible, evil crime, it’s not obvious that you should be able to do so with complete anonymity.”

We have had discussions about anonymity in our comments sections at DNA recently. When we launched the site in May, it was important to us that DNA provided a platform for insightful, interesting, honest and critical conversation about the tech ecosystem.

I am happy to say that has been the case, at least most of the time. When we noticed some “this sux” and “that sucks” comments coming in, we implemented “ground rules,” advising readers that we will delete comments that do not abide by them.

There have been some that have breached this, but we haven’t yet taken the prerogative to remove them, since such strident calls for attention have largely been drowned by the more intelligent conversations going on around them.

But lately, we’ve noticed what can only be described as “questionable comments” being posted in stories about entrepreneurs and startups in our Sizzle/ Fizzle/ Slow Burn section. “Questionable” because they were posted by “silhouettes” and/ or had content which made sense only if they came from the competitors of the companies in question.

That’s just not cricket. It’s sock puppetry of a different nature or name, but smelling just as foul. And we also realized that as we cover more companies, and as the start-up space here becomes more mature and crowded, as companies vie not so much on different ideas, but on different implementations of essentially the same idea, the competition is only going to get stiffer, and perhaps uglier.

And such foul play may find expression in our comments section.

We don’t want that to happen. One way of preventing this is to make identification a prerequisite for posting comments. We are loath to do so, but will take what action is needed to preserve the integrity of the site, and the generally high level of discourse that takes place here.

But we would like to hear from you, dear readers. Tell us if you would support such a move if it came to the crunch, and why; or if not, why not. Give us the pros and cons. Let’s hear from you.

And yes, you can do so anonymously, if you prefer. 🙂

When I said, “Clearly we all want to be anonymous online, in order to protect ourselves”, it wasn’t referring to the right of anonymity to posting comments and opinions online. I wasn’t referring to the right of anonymity in the narrow sense.

To me, the right of anonymity is the right to control your information online. I don’t want to be posting my full name online. I don’t want my potential clients to be googling my name to find pictures of me partying in my heydays. I would like to use an online pseudonym on Twitter and blog so that, among others, potential clients/employers/competitors don’t know what I do daily, who my family members are etc.

I think the video below summarises the problem without the right of anonymity.

The video above basically shows a gifted clairvoyant who finds out about numerous information above a few people he met. The gifted clairvoyant can be seen “reading” those people’s lives accurately.

[Read below for spoiler]

It was later shown that the gifted clairvoyant had a team of people scouring the Internet for information of those people.

拉昔巴星:114A苛刻‧應有更多機制保護無辜

I was quoted in Sin Chew newspaper regarding the weakness of S. 114A Evidence Act 1950.

拉昔巴星:114A苛刻‧應有更多機制保護無辜
2012-10-24 08:22
布城23日訊)今年8月1日通過的證據法令114A條文,雖然經過總檢察署多次召開閉門會議討論,但仍無法消除各界人士對此條文的爭議。

應站在公眾立場考慮

【新潮】就像沒有一個女人會嫌自己瘦一樣,從來沒有一個男人會嫌自己的“小弟弟”過大。

大馬律師公會刑事法委員會主席拉昔巴星認為,檢察司應該站在公眾的立場考慮,而114A條文中應該有更多的防禦機制來保護無辜的人。

“但反過來想想,如果114A條文需要更多的保護機制以免錯誤使用的話,那為甚麼我們還要保留這樣的一個條文呢?”

他今日受邀在總檢察署主辦的114A研討會的發言時,提出上述看法。

總檢察署沒收財產(forfeitureof property)單位主任安森在回應其論點時多次強調,114A條文雖是以事實推定(presumption of fact),但若沒有其他證據支持,這也是無法入罪的。

他指出,事實推定並非法律新詞,根據基本常識判斷的情況也不只是應用在114A的情況中。

“像在一個人身上搜出大量毒品,我們也會推定他是販毒者。”

採用事實推定不恰當

對此,拉昔巴星反駁道,在114A中採用事實推定並不恰當,毒品不容易取得,栽贓嫁禍相當困難。

“但我們可以輕易地取得某人的手機發出誹謗性、煽動性言論陷害他人,而如果這個人根本不記得誰碰過自己的手機而無法找到時間證人,那他就被無辜冤枉了。”

他強調,資訊科技的發展如此迅速,設立114A條文是非常苛刻(Draconian)的。

針對拉昔巴星對114A的批判,他解釋,檢察司在收集證據時會考慮到當時的情況與背景才做出推斷。例如某人用電腦發出誹謗言論,但他所使用的電腦並非他專屬,那這項證據將非常薄弱,不足以提控某人。

“嚴峻的情況便需要採取苛刻的管制方法。”

瑪麗亞特:事實推定更易取真相

專精於知識產權與知識管理的律師瑪麗亞特認為,事實推定是為了更易取得真相。

“事實推定不是自動發生的,檢察司需要蒐集證據,確定器材的所有人後,才由被告舉證保全自己的清白。但就算某人被證實為發出訊息的器材的所有人,他也未必有罪。

單是這一項證明是無法讓他入罪的。”

但她指出,如果沒有114A條文的話,主控官同樣能夠援引114條文提控被告,而他們也能夠取得同樣的成果。

瑪麗亞特也是論壇的3名嘉賓之一,她認為大馬律師公會代表的立場強硬,但他們以公眾利益出發為考量,情有可原。

但她也認為,各方的爭議在於對114A條文有所誤解,他們必須詳細解讀整個證據法令,才能瞭解為甚麼要有114A條文。

“114A比114條文更明確,是因網絡上有人採用匿名方式犯罪而設的,但這項條文中並沒有列明只限用於資訊科技中。”

研討會分2部份進行

這場由總檢察署舉辦的研討會共分兩個部份進行,前半部為安森與扎布里講解114A條文的應用,以及數碼鑑證科無法找出電腦罪案兇手的困境,後半部則由三位論壇嘉賓針對114A的爭議發表看法。

研討會獲得來自律師、大學代表以及電訊服務供應商的響應,出席者近百人,會場幾乎座無虛席。

吳文徉:被告者難證明清白

出席研討會的律師吳文徉指出,以一名律師的立場來看,被告一旦被證實為通訊器材的持有者,如何證明自己的清白對他們而言是困難的,因為一般人大多不具法律常識。

而雖然無辜者事後可能因為證據不足而不被提控,事實推定指他涉罪的話,已經足以導致讓此人名譽受損。

馮正良:危害資訊科技發展
114A應取消或重擬

吉隆坡律師公會資訊工藝委員會主席馮正良認為,114A條文應該被取消或撤回重擬,因為它將危害資訊科技的發展。

他指,用戶創建內容(user-generatedcontent)的網絡平台依賴網民評論和留言來獲得瀏覽率,繼而獲得廣告收入。

他舉例,一家拍賣網站裡若有人蓄意誹謗某一個賣家,在114A條文下,該賣家可以向承載這個信息的網站提出訴訟,無辜的網站管理員就得舉證以保清白。

“誰還敢讓別人在自己網站上留言?被誹謗的人可能會趁機向較富有網站管理人要求賠償,而不是追究真正的誹謗者。”

馮正良也說,以往可以匿名留言的選項在許多網站都被取消了,若繼續推行這條例,網民恐怕會被迫提供更多個人資料,才能註冊成為網站用戶來留言和評論。但這不會減低網站管理人惹官司的可能性。

“我們可以參考澳洲的版權法,即在可能被控上法庭前,發出警告,並賦予人們要求管理員撤下誹謗性信息,三次警告後就能採取法律途徑來解決。”

扎布里:檢舉網絡罪案
數碼鑑證不能找出‘兇手’

大馬電子保安機構(Cyber Security Malaysia)數碼鑑證組高級官員扎布里在114A條文研討會上說,在檢舉網絡罪案時,數碼鑑證不能當結論性證據,因為它只能找出“凶器”,而非找到“兇手”。

“找到發放誹謗性或不實信息的產品後,還要證明產品的主人就是發送者,這環節很困難,所以我們處理的7個網絡罪案訴訟中,有5宗個案是不成立的。”

他也說,該機構進行調查時有辦法取得用戶的瀏覽歷史、網絡談話記錄、緩衝文件(Cache File)及網絡帳號等。

可透過數碼鑑證證明清白

扎布里指出,有的人因為電腦中毒或遭駭客入侵,利用自己的電子產品或賬戶散播誹謗性言論而遭提控,也可以透過數碼鑑證來證明自己是清白的。

“一旦我們發現被告的電子產品有被外界入侵的跡象,我們將告知檢控官說證據太薄弱,建議他們不要檢控。”

他解釋,該機構在追縱信息源頭時,如果最後找到的是如網咖、嘛嘛檔或餐廳等公共的代理伺服器(Proxy Server),調查已經無法繼續。

“所以114A條文其實是檢察司最後的王牌,在我們無法繼續追查時,要求電子產品或網站的主人來證明自己清白,才不會讓網絡罪犯逃之夭夭,繼續幹案。”

(星洲日報)

Section 114A, Evidence Act 1950: Its Impact on Your Business

I will be speaking at Federation of Malaysian Manufacturers’ (FMM) event on 114A below.


Click on image for larger view

Understand the impact of Section 114A on your business and learn about network security and content filtering to protect your business.
Date : October 30, 2012
Time : 08:30 AM – 02:00 PM
Venue : Kuala Lumpur – Wisma FMM, Bandar Sri Damansara
Country : Malaysia

THIS SEMINAR IS FOR YOU IF YOUR COMPANY:
– Provides free Wi-Fi in its premise
– Opens its website to public comments, e.g. online forums
– Has e-commerce sites
– Engages with customers via social networks e.g. Facebook, Twitter and blogs
– Allows your employees to access, from office computers, social media sites or post comments on public forums

WHO SHOULD ATTEND
CEOs, Managing Directors, General Managers, IT Managers

DATE, TIME & VENUE
Tuesday, 30 October 2012 | 8.30 am – 2.30 pm
Wisma FMM, No. 3 Persiaran Dagang PJU 9, Bandar Sri Damansara, 52200 Kuala Lumpur

PROGRAMME

08:30 Registration
09:00 Opening Remarks
by YBhg Datuk Paul Low
FMM Vice President
Session 1: About Section 114A
09:10 Section 114A of Evidence Act, 1950
by Mr Lim Chee Wee
President, Malaysian Bar
09:40 Government’s Perspective of Section 114A Evidence Act 1950
by Attorney General’s Chambers*
10:10 Questions & Answers
10:30 Networking Coffee Break
Session 2: Section 114A and Your Business
10:50 Section 114A and My Business
by Mr Jahabar Sadiq
CEO, Malaysian Insider
11:20 Section 114A and Social Media Tools
by Mr Foong Cheng Leong,
Co-Chairman, KL Bar Information Technology Committee
11:50 Questions & Answer
Session 3: Protecting Your IT Network Against Section 114A Violations
12:10 Preventing Violations Against Section 114A Through Secured Cloud Gateway
by Mr KY Lee, Regional Director-ASEAN,Zscaler
12:40 Regain Visibility and Control – How to securely manage your workforce
by Mr Victor Lo, Senior Regional Manager, Technical Services, Trend Micro Inc.
13:10 Questions & Answer
13:30 Lunch / End of Programme

* invited

PARTICIPATION FEES
FMM Members: RM 200  |  Non-Members: RM 260
Includes lunch and refreshments

SPEAKERS’ PROFILE Download

For more information, please visit http://www.fmm.org.my/

‘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)

Internet Blackout Day on Aug 14

I was briefly quoted by The Sun regarding Malaysia’s Internet Blackout Day.

Posted on 8 August 2012 – 09:50pm
Michelle Chun
newsdesk@thesundaily.com

PETALING JAYA (Aug 8, 2012): August 14 has been declared as Internet Blackout Day by the Centre for Independent Journalism (CIJ).

In a statement, CIJ said it is a bid against a recently passed law, whereby internet users are presumed guilty for content posted through their sites, registered networks or data processing devices.

On that day, internet users who visit participating websites will be met with a pop-up window detailing information on the campaign, but will still be able to access the website, CIJ executive officer Masjaliza Hamzah said.

“Images from the CIJ website and Facebook page can also be downloaded while users can also change their profile pictures to black for the day.

“The day aims to create awareness among Malaysians on the recently passed Evidence (Amendment) (No. 2) Act 2012, which will have a negative impact on freedom of expression online,” she said.

She urged netizens to call on the government to withdraw the amendment which saw the insertion of Section 114a of the Act that states an internet user is deemed the publisher of any online content unless proven otherwise.

KL Bar Information Technology Committee co-chairman Foong Cheng Leong told theSun it is timely to highlight the effects of the law as the awareness level is still low.

“This is an opportunity for internet users to make a stand on this law,” he said, adding that it was not too late.

Suara Rakyat Malaysia (Suaram) executive director Nalini E said Suaram supported the awareness campaign to pressure the government to remove Section 114a.

“The section is unnecessary and can be misused against anyone, and it also goes against the fundamental principle that one is innocent until proven guilty,” she said when contacted.

1 2  Scroll to top