Vk Liew

Bread & Kaya: Dear Attorney General Tommy Thomas, we need to speak about our Malaysia cyberlaw and IT laws reforms

By Foong Cheng Leong | Jun 22, 2018

– Act is clearly against the very fundamental principal of “innocent until proven guilty”
– Need law to curb creation of fake news, especially if created to stoke racial or religious sentiments

Repeal of 114A of Evidence Act 1950

WHEN s. 114A was introduced in the Parliament in 2012, a protest was held by netizens to urge the Government to repeal s. 114A. The #stop114A campaign was held and Malaysia had it first Internet Blackout Day to protest this section.

S. 114A provides for three circumstances where an Internet user is deemed to be a publisher of a content unless proven otherwise by him or her. The relevant section, namely s. 114A(1), states that “A 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”.

In simple words, if your name, photograph or pseudonym appears on any publication depicting yourself as the aforesaid persons, you are deemed to have published the content. So, for example, if someone creates a blog with your name, you are deemed to have published the articles there unless you prove otherwise. If you have a blog and someone posts a comment, you are deemed to have published it.

Subsection (2) provides a graver consequence. If a posting originates from your account with a network service provider, you are deemed to be the publisher unless the contrary is proved. In simple terms, if a posting originates from your TM Unifi account, you are deemed to be the publisher. In the following scenarios, you are deemed to be the publisher unless you prove the contrary:-

(1) You have a home network with a few house mates sharing one internet account. You are deemed to be the publisher even though one of your house mates posts something offensive online.
(2) You have wireless network at home but you did not secure your network. You are deemed to be the publisher even though someone “piggybacks” your network to post something offensive.
(3) You have a party at home and allows your friends to access your PC or wireless network. You are deemed to be the publisher even though it was a friend who posted something offensive.
(4) Someone use your phone or tablet to post something offensive. You are deemed to be the publisher.

As for subsection (3), you are presumed to have published a content if you have custody or control of any computer which the publication originates from. Here, you are deemed to be the publisher so long your computer was the device that had posted the content. If someone “tweetjacks” you or naughtily updates your Facebook with something offensive, you are deemed to be the publisher unless you prove otherwise.

Clearly, it is against our very fundamental principal of “innocent until proven guilty”.

Position of intermediaries (e.g. platform providers)

Currently, many platform providers are vulnerable to be sued or charged in Court for what their users do. For example, an online forum owner would be liable for publishing defamatory statements made by their users pursuant to s. 114A of the Evidence Act 1950. Online marketplace operators may also be sued because their users sold counterfeit products.

It would be ideal for the Government to induce new laws to protect such platform providers but also the punish errant platform providers. For example, a one-strike or three-strikes rule. Under such proposed one-strike rule, an aggrieved person may file a complaint against the platform provider to remove certain postings. If the platform providers remove such posting within a specific time, the platform provider should be absolved from liability. However, if it fails to do so, it will be liable for the acts of its users.

S. 43H of the Copyright Act 1987 is a good example on how to deal with intermediary’s liable in respect of copyright infringement.

In this regard, the Sedition (Amendment) Act 2015, which is not in operation yet, should be repealed. The said amendment creates, among others, liability on website operators such as online forums, online news portals, and even Facebook page/ group owners. [Read http://foongchengleong.com/2015/04/bread-kaya-how-the-new-sedition-act-affects-netizens/]

Specific laws to govern blocking of websites or other electronic platforms.

All blocking orders should be made public and their detailed reasons to block websites. Currently, there is no public list other than one independently maintained by Sinar Project and reasons given are usually one-liners (e.g. in breach of s. 233 of the Communications and Multimedia Act 1998).

However, there could be specific websites which need not be reviewed due to national security issue, among others. As we all know, blocked websites can still be accessed via other means.

Blocking orders should also be made by the Courts rather than the arbitrary decision of the Minister. The current s. 263 of the Communications and Multimedia Act 1998 is used by the Ministry of Communications and Multimedia to direct internet service providers to block platforms in order to prevent the commission or attempted commission of an offence under any written law of Malaysia. In the past however, we have seen websites being blocked due to political reasons e.g. medium.com and bersih.org.

The Anti-Fake News Act 2018 and Sedition (Amendment) Act 2015 have provisions for websites to be blocked by way of application to the Court. All these blocking order sections and s. 263 of the Communications and Multimedia Act 1998 should be replaced with one single law to govern blocking of electronic platforms.

The law should also allow any person such as users of the platforms to challenge any blocking orders. When the previous Government decided to block medium.com, as far as I know, the site owners did not file any challenge in Court to unblock their website. Many netizens were denied access to informative and educational content from medium.com. There were no specific laws allowing them to challenge the block. They were also unsure if they could meet the threshold to file an action for judicial review.

Specific channels to allow litigants to obtain information about wrongdoers

In the present case, a person who wishes to obtain information about another person, for example another Facebook user who had defamed or harasses him, would need to go through a long and expensive process to obtain such information. Normally these wrongdoers will use platforms provided by foreign companies to attack another user.

It would be ideal if a straight forward process be made to such person to obtain such information. For example, filing a request to the Government for it to request the same from the platform providers.

SS. 211 and 233 of the Communications and Multimedia Act 1998

S. 233 of the Communications and Multimedia Act 1998 (which is similar to s. 211) has been used by the previous administration against dissent. The Bar Council has called for the repeal of Section 233(1)(a) of the Communications and Multimedia Act 1998 as it is a serious encroachment on the freedom of speech and expression guaranteed by Article 10(1)(a) of our Federal Constitution. I concur with the Bar Council on this.

However, I suggest that new laws be introduced to stop contents which can cause hatred and disturbance about certain individuals or organisations. We cannot have people sending fake messages which can cause a riot, for example.

Anti Fake News Act 2018

Many calls have been made to repeal the Anti Fake News Act 2018, which came into operation weeks before the 14th General Election. One person has been sentenced and many have been investigated for spreading fake news. Prime Minister Dr Mahathir Mohamad has confirmed that this Act will be repealed.

Notwithstanding such calls to repeal the law, I am of the view that there should be laws to curb the creation of fake news especially those created to stoke racial or religious sentiments. Note that s. 233 of the Communications and Multimedia Act 1998 requires a communication to target a certain person. Fake news may not necessary be targeting a certain person. It could target a race and a place, for example.

Revamp of the Admissibility of Electronic Evidence

Currently, almost every document printed by a computer is admissible under s. 90A of the Evidence Act 1950. This section should be examined to define clearly on what admissible and not admissible.

The Court’s electronic system should also be upgraded to allow the admissible of all forms of electronic media such as songs, videos and animated files. Currently, lawyers have to burn those evidence in a CD to be filed in Court. This defeats the open justice system where all Court proceedings are accessible to the public.

[Postscript] In addition, the Court’s file search system should also be updated. Currently it allows a user to conduct a file search for 30 minutes (per ticket) via its slow system. It loads page by page and one cannot download all the documents at one go. It should be revamped to allow a user to download the entire file with one single fee.

Laws to protect netizens

New laws should be introduced to criminalise cyberbullying, stalking and harassment. It is noted that this type of acts these days are not made directly against a person.

Government should also study the criminalisation of maintaining cybertroopers. Many organisations in the world including Governments use the services of cybertroopers to attack individuals. They would send threatening, harassing or annoying messages, posting private information of that individual and create fake content about that individual.

Lastly, what we need is meaningful and effectively consultation with the Government. The previous administration had basically shoved us with laws with little consultation. I remember when our #Stop114A team went to meet the then Deputy Minister of Law, V.K Liew, to hand in our petition to repeal s.114A, he said that the Bar Council needs professional advice. I trust that the new Government will make a wise choice in deciding the right people for the right job.


First published on Digital News Asia on 22 June 2018

Govt stealthily gazettes Evidence Act amendment, law is now in operation

I was quoted by Digital News Asia on what internet users and website owners should do in view that the Evidence (Amendment) (No. 2) Act 2012 is in force.

A. Asohan
Aug 08, 2012
  • Controversial law has been in effect since July 31 after ‘stealth’ move by Govt
  • Civil society continues its struggle to see the law revoked

THE Malaysian Government has gone ahead to gazette a controversial amendment to the Evidence Act 1950 despite the objections and concerns of the online community and civil advocates, who have said it would have a chilling effect on freedom of expression.

Section 114A to the Evidence Act was gazetted by de facto Law Minister Mohamed Nazri Abdul Aziz and has been in operation since July 31, according to a notification on the Attorney-General’s Chambers website(Click here for the PDF documentation).

“The law can be enforced now,” said Masjaliza Hamzah, executive director of Center of Independent Journalism (CIJ) in Malaysia, which has been spearheading efforts to see the legislation revoked.

However, she noted that even if a law has been gazetted, it may be impossible to enforce it if those who are responsible for it are not trained and are not ready to implement it. “This was the case with the Domestic Violence Act which was passed and gazetted in 1994, but was not implemented until 1996 after women’s groups campaigned to put pressure for that to happen,” she added.

Law Minister Nazri gazetted the law despite his own deputy Datuk V.K. Liew conceding in June that more discussions were needed after the CIJ had handed him a petition with more than 3,000 signatures.

“Sometimes, laws can be gazetted quietly — unnoticed, you could argue it’s almost by stealth — and we only know they exist when they are implemented,” Masjaliza told Digital News Asia by email.

“Many people in Selangor and Federal Territory did not know that Muslim women cannot contest in beauty pageants under the Syariah Criminal Offences (SCO) laws until five young women were arrested for taking part in a Miss Petite contest.

“The fatwa banning this was gazetted and therefore can be enforced under the law and these women were arrested for breaching a fatwa. It was only at that point that people heard that there was the SCO Enactment in Selangor and the SCO Act in the Federal Territory, and that they apply to Muslims in those states,” she added.

Section 114A, otherwise known as Evidence (Amendment) (No. 2) Act 2012, was passed by the Dewan Rakyat and Dewan Negara in April.

Under Section 114A, an Internet user is deemed the publisher of any online content unless proven otherwise. It also makes individuals and those who administer, operate or provide spaces for online community forums, blogging and hosting services, liable for content published through their services.

“This presumption of guilt goes against a fundamental principle of justice – innocent until proven guilty — and disproportionately burdens the average person who may not have the resources to defend himself in court,” the CIJ has said.

“The amendment’s wide reach will affect all Internet users, websites which provide space for online comments, and any business premises which give free Wi-Fi access to their customers.

“In addition, the new amendment was passed despite the fact that existing laws — including the Computer Crimes Act 1997, Sedition Act 1948, Defamation Act 1957, and Section 233 of the Communications and Multimedia Act 1998 — have been used to arrest and charge in court those who commit defamation, criminal defamation, fraud and sedition online,” it said.

Govt knows best?

Malaysia’s law-making process can be very opaque and undemocratic, Masjaliza lamented.

“People who are affected by these laws — and we are many — are not consulted at all during the drafting process. We have no idea there’s a draft bill coming, and some of us may hear about it only when it’s discussed in Parliament, and only if the media covers it,” she said.

“Then there’s a period of silence. Are Malaysians expected to go to the Attorney-General Chambers’ website every day to check if any laws have been gazetted recently and see how they apply to them?

“This is what happens when the ruling government doesn’t believe in meaningful consultation with the public before they enact any law,” she added.

After a furore earlier this year over amendments to Elections Offences Act, later revoked, the Malaysian Government promised that public consultations would be the order of the day for future laws.

“It sounds a bit hollow … now,” said Masjaliza. “Who will be consulted? Will it be a select few? How comprehensive is that process going to be?”

Lawyer advises caution

Meanwhile, a lawyer who has been monitoring the issue has advised caution on the part of Internet users and website owners.

Users must ensure that their Internet connection or devices are properly secured, said Foong Cheng Leong, co-chair of Kuala Lumpur Bar Information Technology Committee.

“They should also frequently update their anti-virus software, use strong passwords and refrain from retweeting or republishing anything dubious or unverified,” he said.

“As for website owners, they may want to consider monitoring their comments,” he said.

Foong said that website owners may want to:

1) Disable anonymous users from posting any comments.

2) Revise the terms and conditions for use of their websites, to perhaps include an indemnity clause to compel the user to indemnify the website owner in the event of any damages. They may also choose to include a clause prohibiting users from posting comments relating to religion, politics, etc. and that anyone who does that will be banned or have his or her posting removed.

3) Remove Facebook’s comments function as website owners do not have control over the contents posted.

4) Only allow registered users who have provided all their personal details to post comments.

5) Owners of low-traffic websites may consider reviewing comments before allowing them to be posted.

6) High-traffic websites (e.g. forums) may consider appointing someone to monitor or track all postings. Alternatively, they can have a user rating system where users can rate whether a posting is offensive and if so, it gets suppressed/ removed. YouTube has this function.

“The registered account holders of Internet services [such as UniFi] may want to reconsider sharing their Internet connection with others,” Foong added.

Internet Blackout Day still on

Despite the gazetting of the law, civil society is going to go ahead with the “Internet Blackout Day” for Aug 14 which aims to create awareness among Internet users about the negative impact of the amendment on online expression.

Taking its cue from similar efforts in the United States and New Zealand in support of Internet freedom, on that day, Internet users who visit participating websites will see a pop-up window which contains the message of the campaign. In addition, Netizens can change their profile pictures/ avatars on Twitter and Facebook to black, or use downloadable images provided by the CIJ.

“We [still] hope to get a buzz around Section 114a and how it’s going to affect the average Internet user, and urge people to do something. We must do something, even if the law’s been gazetted,” said Masjaliza.

“Once a critical mass is aware of the law and its implications on them, then it’s easier to get people to support actions under the ‘Stop 114A’ campaign,” she said.

“If more people are talking about this and are outraged that this was done without their knowledge, then we will have a good base of support for the next course of action,” she added.

Foong concurred. “It is not too late; we can always lobby for the repeal of the amendment. Please take part in the Internet Blackout Day initiated by the CIJ.”

The Internet Blackout Day has received positive response from the Internet community. Businesses which rely on the Internet such as the auction store lelong.com.my, online forum cari.com.my, and entertainment portal gua.com.my have signed up to show support, the CIJ said.

Other key supporters include online news sites such as Malaysiakini and Digital News Asia, bloggers such as Niki Cheong and Nat Tan. This initiative is also supported by civil society organisations such as SUARAM and the Women’s Aid Organisation.

For more information about the Internet Blackout Day and to take part in the campaign please visit:
1. The official blog at stop114a.wordpress.com
2. The Facebook page https://www.facebook.com/evidenceamendmentact.
3. Stop 114A’s Twibbon page for Twitter: http://twibbon.com/join/Stop-114A
4. Stop 114A’s Twibbon page for Facebook: http://twibbon.com/cause/Stop-114A/facebook

For additional information, please contact CIJ via e-mail at cijmalaysia@gmail.com or call +603-4023 0772.

Changes to Evidence Act will ‘chill ICT growth’

In my effort to lobby for the withdrawal of the Evidence (Amedment) (No. 2) Act 2012, The Edge Daily reported the following:-

Changes to Evidence Act will ‘chill ICT growth’

by theedgemalaysia.com on Thursday, 28 June 2012 09:00

KUALA LUMPUR: The recent amendments to the Evidence Act 1950 will have a “chilling effect” on the country’s development of information and communication technologies, the Centre for Independent Journalism (CIJ) said.

The media watchdog group made this statement when handing over a petition against the recent amendments to Deputy Minister in the Prime Minister’s Department Datuk VK Liew in Parliament on Tuesday.

The petition, bearing more than 3,300 signatures, called on the government to withdraw Section 114A of the Evidence (Amendment) (No 2) Act 2012 because it threatens freedom of expression online and presumes the guilt rather than innocence of Internet users publishing content online, CIJ said in a statement.

CIJ director Jac SM Kee said: “The law is vague and broad enough that it has caused a lot of fear. Majority of Malaysians will err on the side of caution.” The presumption of guilt also disproportionately burdens the majority of Internet users in Malaysia who are not very tech-savvy, the statement said.

“What can an ordinary Internet user do to prove it wasn’t them who published something online when the Malaysian Communications and Multimedia Commission [MCMC] itself sometimes says it doesn’t have the technical resources to find the real culprits?” she told Liew. Liew, however, said many fears are misplaced and agreed that more dialogue is needed. He also thanked the petitioners for presenting their views.

The amendment also makes Internet intermediaries — parties that provide online community forums, blogging and hosting services — liable for content that is published through its services. This has implications on businesses such as eateries that provide free WiFi. 

“If a kopitiam owner is liable for all the traffic that goes through its WiFi, it places a lot of burden on them, in terms of monetary and human resources, to either conduct surveillance or stop providing WiFi altogether,” Kee said.

Joining CIJ at the handover was A Asohan, executive editor of Digital News Asia, and Foong Cheng Leong, co-chair of Kuala Lumpur Bar Information Technology Committee.

Speaking to reporters later, Asohan said: “The fact that MPs from the both sides of the political divide did not understand the wider ramifications of this amendment shows there is a need for greater discussion.

We need more legal brains on it and feedback from the industry and others like Multimedia Development Corp [MDeC] and MCMC. Given that the digital transformation programme will be announced soon, this will be a major issue.”

The controversial amendment was rushed through during April’s parliamentary meeting which saw a raft of laws passed without debate. The amendment made news shortly after when concerns were raised by civil society over its detrimental impact and broad reach, the statement said.

This article appeared in The Edge Financial Daily on June 28, 2012.

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