Ng Kok Yong, an intern at RWY gives a shot on what he feels about the new 114A
The Evidence Act 1950 operates as conduit to
allow any evidence to be tendered into court. The Act operates in an
inclusionary method ie. for evidence to be tendered in into court, that
evidence must fall within one of the provision in the Evidence Act.
Over and above that, the Evidence
Act also provides certain presumption when dealing with evidence and Evidence
Act s.114 is one of them.
Recently, Parliament enacted
s.114A which reads: -
“Presumption of fact in publication”
114A. (1) 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.
(2) A person who is
registered with a network service provider as a subscriber of a network service
on which any publication originates from is presumed to be the person who
published or re-published the publication unless the contrary is proved.
(3) Any person who has in
his custody or control any computer on which any publication originates from is
presumed to have published or re-published the content of the publication
unless the contrary is proved.
(4) For the purpose of
this section—
.
(a) “network service” and “network
service provider” have the meaning assigned to them in section 6 of the
Communications and Multimedia Act 1998 [Act 588]; and
.
(b) “publication” means a statement
or a representation, whether in written, printed, pictorial, film, graphical,
acoustic or other form displayed on the screen of a computer.”
‘Hotly-disputed’ and ‘strongly
criticised’ are among the phrases used to describe the badly drafted new
section 114A of the Evidence Act 2012 and how disastrous the consequences can
be. In plain words, the new law raises a presumption that the owner of the
websites, networks or computers is the publisher whenever a statement is made
and published. Now, how is it detrimental to the society? What kind of impact
does the section 114A have on you, me and everyone else within the jurisdiction
of Malaysia?
Well, to answer the questions, all
individuals are now prone to defamation suits, among other wrongs, when a
statement or representation is posted or re-posted out of the genuine
expression of concern. With the new law being enforced, everything appears on
the screen of a website host could be a potential lawsuit because the onus is
on the host to rebut such presumption. In essence, the fundamental rights have
been encroached and infringed! Section 114A (1) concerns hosts of website and
publishers of any statement or representation, subsection (2) on registered
network service providers and subsection (3) on computers owners, which
encompasses everyone with a computer and internet connection. To state the
obvious, this section restricts our freedom; to state the worst, it may make us
liable for wrong committed by others.
Among the
implications of the enforcement of the section are:
(1)
Freedom
of expression and freedom of speech have been crippled.
(2)
Freedom
to information has been infringed. Users now see only what they are ALLOWED to
see.
(3)
Presumption
of culpability instead of presumption of innocence.
(4)
A great
challenge to democracy.
Loose
ends the Parliament forgot to tie?
(1)
Hyperlink –
hyperlinks connect users from websites to websites. For instance, A, who hosts
a website, hyperlinks the website to another website hosted B who makes
defamatory remarks of C. Is A liable for the defamatory statement published by
a website beyond his control? No to some of the jurisdictions but probably yes
if this section is strictly applied!
(2) Thefts and Hackings – it is not uncommon to have our property stolen every now
and then, which includes hacking. Hypothetical scenario, if A’s laptop being
unknowingly used by B to post a sensitive comment, A will be presumed to have
published the comment himself even though the real culprit is B. Turn to another
scenario, if B hacks into A’s network and publishes another compromising
statement, A will be presumed to be liable since A is the registered network
provider with unique IP address
(3) Impersonation –
another extreme yet probable situation would be having A being impersonated by
B to publish some defamatory comments. A would simply be liable just because
his picture and particulars appear on the screen. Simple trick to sabotage
somebody else without getting caught!
Conclusion
If it is apparent to the writer to see
these, it will not be difficult for others to realise how vulnerable the new
law is to allow one to commit a crime at somebody else’s expense. Unless and
until the authority has absolute capability to eradicate the abovementioned
weaknesses, section 114A should not be enforced at all. Whether section 114A is
a creation of politics or public interest, our wise readers, please decide it
yourselves.
Ng Kok Yong
August 2012
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