Section 114A of the
Evidence Act 1950 - Presumption of Fact In Publication
The amendment of Evidence Act 1950 with the addition of new provision of Section 114A has caused a lot of condemnation among Malaysians, particularly the regular Internet users. The insertion of Section 114A in the amended Act is controversial, mainly because it is quite easy for fairness to start down the slippery slope. And for the most part, it is being alleged as a evil attempt to suppress freedom of expression on the Internet.
a) Introduction
Section 114A, entitled “Presumption of Fact in Publication,” is a new amendment to the Evidence Act 1950. The amendment was tabled and passed in Dewan Rakyat without substantial debate in April 2012 and was passed through Dewan Negara on 9 May 2012. It has been gazetted and the Minister has chosen 31 July 2012 to be the coming-into-operation date for the amendment.
Applying to both civil and criminal
cases in which allegedly illicit content is published on a webpage, Section
114A presumes that the following groups or individuals are guilty of publishing
the content in question:
(1)
Those that own, administrate, or edit websites open to public contributors,
such as online forums or blogs;
(2)
Those who provide webhosting or Internet services to the webpage in question;
and
(3)
Those own the computer or mobile device on which the content in question was
published.
b) Reason
The stated purpose of Section 114A is to identify persons accountable for allegedly illicit content (i.e., defamatory, seditious, or libellous) published on the Internet. The realities of the Internet make it challenging for law enforcement officials to identify and hold individuals accountable for criminal activities committed online.
First, a significant number of Internet users are using anonymous identities in online environments, and a few of them are exploiting the anonymous identities for criminal purposes. Second, given the ease with which existing content can be re-published on the Internet, it is difficult to identify the original publisher in a decentralized, digital network.
c) Mistake
This amendment is a mistake. The provision wrongfully considers a person or group to be liable for content published by anyone assuming their identity online, using their computer or mobile device, or contributing to a website they administer or host. This presumption, which rests primarily on circumstantial evidence, fails to hold the original publishers of allegedly illicit content accountable for their crimes. Under Section 114A, victims of hacking or identity theft would be considered guilty of publishing content produced by cybercriminals. Similarly, a blogger would be liable for defamatory comments posted by their readers.
This amendment could lead to the detainment or prosecution of innocent individuals and undercuts a key principle of a fair legal system: the presumption that the accused is innocent until proven guilty by the prosecution. In other words, Section 114A threatens core principles of justice, democracy, and fundamental human rights.
Furthermore, Section 114A will not deter cybercrime. It gives hackers and cybercriminals ‘exemption’ by making the victim of their activities liable for their crimes. Under Section 114A, for example, a hacker who posts defamatory statements using another individual’s Twitter account will not be held responsible for the crime.
Consequently, the amendment encourages cybercriminals, hackers, and identity-thieves to further exploit online anonymity and deflect the presumption of guilt onto law-abiding citizens.
e) Effects to Economy
Section 114A holds Internet
intermediaries (parties providing webhosting space or Internet access) liable
for content that is published through its services or on its network. Eateries
that provide free wireless Internet access to their customers, for example, are
accountable for illicit images, tweets, Facebook posts, or blog updates
published on its network. To avoid being held responsible under Section 114A of
the Evidence Act, restaurants providing free Wi-fi may unwarrantedly monitor
its customers’ Internet activities or stop providing access to the Internet altogether,
which would be detrimental to their business and profitability.
The amendment would also make a negative impact on Malaysia’s Internet sector. In 2010, the Internet sector contributed to 4.1% (RM30 billion) of Malaysia’s GDP–well above developed countries, whose Internet sectors accounted for 3.4% of their GDP.¹ The driving force behind Malaysia’s growing Internet economy is a thriving network of Internet users who can exercise their right to free expression.
The success of the Malaysia’s Internet start-ups, for example, depends on users who can create, find, and share content online. The popularity of social networking sites also encourages enterprises to develop innovative and lucrative marketing strategies that promote economic activity. Sites such as Facebook and Twitter effectively extend the reach and popularity of the goods offered by Malaysian businesses, which can also improve their goods by using these sites to generate feedback from consumers. The country’s continued economic growth, therefore, depends on initiatives that encourage rather than discourage participation on the Internet.
Section 114A deters user-driven production and consumption of Internet content. Since the amendment wrongfully places the burden of proof on the owner of a webpage or device, it fosters a climate of self-censorship that hinders the creation and distribution of information online. As a result, the amendment threatens the business model of both emerging and established businesses in Malaysia whose success depends on participatory Internet communities.
f) Democracy
The open and free exchange of
information is a foundational component of a robust democracy. It ensures the
existence of an informed and active citizenry that can participate in their country’s
political development. The Internet, which accelerates the flow of information
and provides new opportunities to participate in public dialogue, has the
potential to facilitate the democratization process. As such, citizens must
exercise their right to free expression in both offline and online environments.
Our opinions – as citizens and as netizens – matter. If the new Evidence Act
were gazetted, Section 114A would seriously undermine not only the democratic right
to freedom of expression on the Internet but also the democratic integrity of
Malaysia.
g) It’s Time To Act
On 31 May 2012, Centre for
Independent Journalism (CIJ) Malaysia launched an e-petition to mobilize
support for a campaign to stop the Section 114A from being gazetted. CIJ is a
non-governmental, non-profit organization, that aspires society for democracy,
just and free country where all peoples will enjoy free media and the freedom
to express, seek, and impart information.
Within a month, over 3,300 people
signed the petition to express their opposition to the amendment. Among those
who signed were such prominent Malaysians as Segambut MP Lim Lip Eng, film
producer Pete Teo, writer and radio personality Patrick Teoh, social activists
Marina Mahathir and Dr. Irene Fernandez, and notable academics Dr. Azmi Sharom
and Dr. Mustafa K. Anuar.
Some Members of Parliament from
Barisan Nasional have also expressed their disagreement with the amendment.
Khairy Jamaluddin said, “The burden of proof must always be with the accuser,
not the accused”.² Besides, Saifuddin Abdullah who is also concerned about the reversed
burden of prove believes that the amendment should be revoked.³
On 28 June 2012, Pakatan Rakyat
issued a public statement recommending the government table a proposal to
repeal Secton 114A of the Evidence Act. The statement was signed by Subang MP R
Sivarasa, Batu Gajah MP Fong Po Kuan, and Kuala Selangor MP Dr. Dzulkefly Ahmad.
h) The government
stands firm with Section 114A
Reported in New Straits
Times in 24th August 2012
KUALA
KANGSAR: The amended Section 114A of the Evidence Act 1950 stays as it protects
the people, Minister in the Prime Minister’s Department Datuk Seri Mohamed
Nazri Abdul Aziz said yesterday. Dismissing the need for a review, he said it
could thwart attempts by certain quarters intending to harm the country. He
said opposition members of parliament had not objected to the amendment when
the bill was debated in Parliament in April.
“It (the amendment) stays. We are
concerned for the people. I did not hesitate to table the bill because I
thought that the amendment was necessary for the country's security. It was
debated for four hours, and I replied to all the questions raised by the
opposition. They (the opposition) were not totally against the amendment
because they are also potential victims.”
"No government wants to have an
act or make an amendment to prosecute innocent people. I think the public
should realise this," Nazri said at
a press conference at his house here.
References
1. Frequently
Asked Questions (FAQs) on Section 114A of the Evidence Act 1950, “Presumption
of Fact in Publication”, prepared by the Centre for Independent Journalism
(CIJ)
2. Joseph Chin,
“McKinsey, Google: Internet contributed RM30 billion of Malaysia’s GDP in
2010”, The Edge Malaysia, 01 February 2012, online at:
http://www.theedgemalaysia.com/index.php?option=com_content&task=view&id=200283&Itemid=88
3. Leven Woon,
“Youth chief wants Evidence Act changes revoked”, Malaysiakini, 16 June 2012,
online at: http://www.malaysiakini.com/news/201025
4. “Saifuddin:
Move should be revoked”, The Malay Mail, 4 July 2012, print.
5. Audrey,
Dermawan. "Amended Section 114A stays, says Nazri" New Straits Times
[Kuala Lumpur] 24 August 2012.
<http://www.nst.com.my/top-news/amended-section-114a-stays-says-nazri-1.128725>.
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