10 August 2012

The New Section 114A Evidence Act 1950 in Malaysia

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!

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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