Last year, I found a box full of cassettes at the Kuala Lumpur Bar Secretariat. They were recordings of various Kuala Lumpur Bar events in the late 1990s and early 2000 where smartphones were not widely available yet (perhaps not even in existence).
One of the cassettes had the label “Lecture on Traditions of the Bar by Dato Dr. Peter Mooney”. The late Peter Mooney was a very well-known lawyer who, like many early lawyers of Malaya, came from the United Kingdom. Many of his contemporaries had left for home or had passed on. Peter Mooney served as the Attorney General of Sarawak and Vice President of the Bar Council. He was also one of the founding partners of Skrine. He passed on recently at the age of 92.
I have converted into a podcast using a device I bought online (above). Some parts of the podcast is a little bit fuzzy due to the age of the cassette (16 years old!).
This is my favourite part of the podcast:-
“The independent of the Bar is absolute essential if the system is to work properly and it essential to the liberty of the subject. Justice will be done only if there is a strong bar which is courageous and as well as independent”.
Foong Cheng Leong, a lawyer tells of the intellectual property laws governing social media and what businesses ought to look out for and not infringe. If a business outsources the management of its social media activities, who is responsible for infringements?
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.
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.
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.
As part of our series, Msia: I Can in collaboration with Loyar Burok to encourage awareness of rightsamongst citizens, we will be examining the right to privacy. In a society with extremely communaltendencies, the right to privacy is rarely discussed. As adolescents we submit to the right of ourparents to invade our lives, and as adults we submit to the authorities. Where should we draw theline? Foong Cheng Leong, privacy law expert joins us to explain our inherent right to keep our business to ourselves, and its limitations in Malaysia.
Foong Cheng Leong is an Advocate and Solicitor of the High Court of Malaya and also a registered Malaysian trade mark, industrial designs and patent agent.
He had served the Malaysian Bar and Kuala Lumpur Bar in the following capacities:-
1. Kuala Lumpur Bar Committee (2013 to present)
2. Chairperson of the Kuala Lumpur Information Technology (2012 to present)
3. Co-Chairperson of the Bar Council Ad-Hoc Committee on Personal Data Protection (2013 to 2016)
4. Co-Deputy Chair of the Bar Council Intellectual Property Committee (2015 and present)
5. Co-Chairperson of the Bar Council Information Technology and Cyberlaws Committee (2015 to present)
He is also the author of the book, Compendium of Malaysian Intellectual Property Cases consisting of the following two volumes
1. Vol 1- Trade Marks