This month marks the 2nd year anniversary of Section 114A of the Evidence Act 1950 (“Section 114A”), which came into force on 31 July 2012.
Much has been said and written about this onerous provision under the Evidence Act 1950 since it was passed by the Malaysian Parliament in 2012.
The call for repeal or review of Section 114A also fell on deaf ears as the authorities have not taken any action thus far, save for a short tweet by the Prime Minister saying that he had instructed his Cabinet to review this notorious provision of the law.
The intention of Section 114A, according to the Government, is to facilitate the identification and proving of the identity of an anonymous person involved in illicit or harmful content published on the Internet.
However, this controversial provision has attracted a lot of criticisms and sparked many debates, particularly from the netizens in Malaysia, who viewed this provision as a move by the Government to threaten the right to freedom of expression on the Web.
Section 114A will have an impact on anyone who uses the Internet, computers, or mobile devices; those who administer, operate or provide spaces for online community forums, blogging and hosting services as well as any business premises which offer free WiFi access to their customers.
The protest against Section 114A led to the occurrence of the very first Internet Blackout Day in Malaysia that took place on 14 August 2012, which was an action to create awareness about the negative impacts of Section 114A and to show protest against this draconian provision under the law.
In a nutshell, Section 114A creates a legal presumption that any registered user/subscriber of a network service, or any person who has in his custody or control any computer on which any publication originates from, is presumed to be the publisher of a publication sent from a computer which is linked to that network service or that computer, unless the contrary is proved.
It also provides that any 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.
Section 114A allows the prosecution in a criminal case or a plaintiff in a civil suit to rely on a presumption of fact to prove the identity of the person responsible for an internet publication.
It shifts the burden of proof from the prosecution/plaintiff to the accused person/defendant in the sense that the accused person/defendant will be deemed as the publisher of the content unless the accused person/defendant proves otherwise.
The implications of this wide and draconian provision could be very serious.
For example, if a person hacks into another person’s mobile device or Facebook account, and uses that device or Facebook account to post a defamatory statement anonymously, the victim of the hacked device or Facebook account will be deemed as the publisher and could be sued for the defamatory statement that he did not post.
Bloggers and forum administrators also opposed to Section 114A, simply because if a reader of their sites posts a libellous or seditious comment, the bloggers and forum administrators will be deemed as the publishers of the comment and could be charged for sedition or sued for defamation.
Çafe operators that offer free WiFi facility at their cafes could also be potentially liable for the conducts of their customers who use the WiFi network to post unlawful content, simply because the operators are the “registered users/subscribers of the network service” which are linked to the content originating from a computer/mobile device using the WiFi service.
In short, if an unlawful, illicit or harmful content is tracked back to your username, electronic device or network service, Section 114A presumes you as the publisher of the content.
As most of the times, the authorities cannot trace the identity of the actual author who posts or makes those seditious, defamatory or libellous postings, Section 114A now enables the prosecution to hold these people as “publishers” and make them accountable for those unlawful contents, even though they are not the actual authors of the content.
Do note that Section 114A is a rebuttable presumption of fact, not a direct presumption of guilt.
Notwithstanding the presumption, the prosecution/plaintiff would still need to prove the other elements of the offence/claim.
For example, if a person is charged under the Sedition Act 1948 for uttering a seditious statement, that person will be presumed as the publisher under Section 114A, but not necessarily guilty of sedition. The prosecution would still need to prove that those words are “seditious” before that person can be made guilty.
Be that as it may, Section 114A essentially goes against the very fundamental principle of natural justice that “one is presumed to be innocent until proven guilty”.
Most ordinary individuals would not have the resources to defend themselves in court, compared to the entire machinery that the authorities have, such as the police force, the Attorney General’s Chambers, the Malaysian Communication and Multimedia Commission, etc, who have the technology, manpower and resources to do the investigation.
Under Section 114A, individuals will have to bear the disproportionate burden to prove their innocence when it should be the job of the prosecution to prove the commission of the offence by the individuals. Furthermore, dragging such individuals into court would cause unnecessary embarrassment, cost and inconvenience that no amount of compensation can make up for that.
The Government has justified this Section 114A by saying that the cross-border nature of the Internet has made it extremely difficult for the authorities to trace the identity of the culprits, who often post those content anonymously.
But this cannot be a valid justification, simply because if it is difficult for the authorities to gather the required evidence, what makes them think that it would be less difficult for the ordinary individuals to prove their innocence?
It is indeed a tough balancing act, and the Government will have to get it right in protecting the people’s interests while safeguarding the right to freedom of expression on the Internet.
*****
About the author:
This article was written by Edwin Lee Yong Cieh, Partner of LPP Law – law firm in Kuala Lumpur, Malaysia (+6016 928 6130, [email protected]). Feel free to contact him if you have any queries.
This article was first published in CHIP Magazine Malaysia.
The view expressed in this article is intended to provide a general guide to the subject matter and does not constitute professional legal advice. You are advised to seek proper legal advice for your specific situation.
Edwin is a corporate and technology lawyer. He is also the founder and deputy managing partner of Lee & Poh Partnership (LPP Law). Edwin has advised a range of companies from technology startups to multinational corporations on a range of matters. In 2020, Edwin was named as a Malaysian Rising Star by Asian Legal Business, a finalist for the Young Lawyer of the Year at the ALB Malaysia Law Awards as well as a lawyer in the annual ALB publication of Asia 40 under 40.
View his full profile here.
