Featured in Sin Chew

Frank_omatic called me the other day.

Frank: I saw you in the newspaper. Your face looks so smooth lar. You go for facial is it?

Me: No, I think they photoshop it!

[Read full article here (in Chinese)]

I attended this 114A event organised by The Attorney General’s Chambers (AGC). The AGC invited the Bar Council and CyberSecurity to present as well. I briefed Bar Council’s representative for the talk on my views but nevertheless still attended the event to hear AGC and CyberSecurity’s views.

When the floor was opened for questions, I bombarded the speakers with questions. Although I was not one of the speakers, Sin Chew interviewed me nonetheless.

The trick I learn from attending events is that one should ask questions when the floor is opened for questions. This allows everyone to know who you are. Probably you can drop a line or two to say what you do.

With this, you won’t be one of the nameless faceless in events.

Personal notes on the #stop114A campaign

As some of you have seen from my previous postings about my media features regarding the Evidence (Amendment) (No. 2) Act 2012, Central of Independent Journalism (CIJ), A. Asohan (Digital News Asia), myself and many others have been quite active in trying to get this new law repealed (See my “Grave Repercussions for Internet Users” article). This campaign is famously known as the #stop114A campaign.

Forum on “Section 114A Evidence Act: Crime-busting or Online Control” at the Chinese Assembly Hall on 12 June 2012. It was my first time meeting people from CIJ. CIJ gave me RM300 as a token of appreciation. I donated part of it back to them. I think I should donate any monetary tokens back to non profit organisations next time.

After all the talks and media features, we took a bigger step. We went to Parliament to meet with Members of Parliament to persuade them to revoke this law. Thanks to CIJ, Jac Sm Kee, A. Asohan and I managed to meet some important people.

I’ve never thought that I will ever enter Parliament compound or even lobby for a law to be revoked. It was certainly a unique experience.

Getting into Parliament was surprisingly quite easy. All I had to say is that I have a meeting with so and so and hand them my identity card. There was no body search or even car search. I guess it’s not necessary since Malaysia is relatively a peaceful country.

I saw some politicians that I always see on TV, such as our Deputy Prime Minister and former Penang Chief Minister.

Inside the old Parliament

Iconic building

View from inside the iconic building

The compound wasn’t really big either. The iconic building is actually offices. The Dewan Negara and Dewan Rakyat are at another building behind it. One of the MPs (whom I know from a case which I did. He was my opponent) brought me into Dewan Rakyat to watch the proceedings. I was checking out the computers of the MPs and none of them were on Facebook.

CIJ initiated an online petition to call for the withdrawal of the new law. It had over 3000 signatures and it had to be presented before the Parliament session ends.

CIJ managed to fix a meeting with de facto Law Minister Dato’ Seri Mohamed Nazri for us to present the petition. However, it was called off few minutes before the event.

We presented the petition on the next day to the Deputy Law Minister Datuk VK Liew at the media corner of Parliament. It’s a small corner for MPs to do their press conferences.

At the media conference..

VK Liew (to me): You Bar Council?
Me: No, KL Bar.
VK Liew: No, you’re Bar Council!
Me: -_-|||

While commenting on the Bill..

VK Liew: Bar Council should get professional advice..
Me: -_-|||

We persuaded Datuk VK Liew to rethink about this law but unfortunately, he wasn’t receptive about it and played it down by calling our fears “misplaced”.

“Burden of proof is still on the prosecution!”

“But that is after you are arrested and charged!”

“That’s a different issue!”.


Days later, CIJ managed to fix a meeting with the opposition MPs for us to brief them about the new amendments. Jac Sm Kee and I briefing Sivarasa, Nurul Izzah, Fong Poh Kuan and a few others on the repercussions of the new law.

Meeting with Pakatan MPs at the “Bilik Pembangkang” in Parliament

We were fortunate that the opposition coalition took our position and called for the new amendments to be revoked. Unfortunately, the coverage was weak. Only Free Malaysia Today and Malaysiakini covered this story. Weeks ago, we briefed the Pakatan senators on the law. It went well. The senators expressed their intention to help.

Things took a turn when Liew of Cari Internet came on board to support #stop114a. Liew and I had dealings together when I was in my old firm.

CIJ called me a meeting to discuss in 12 July 2012. The response was lukewarm. It was probably about 12 people and most of them were from CIJ and NGOs. Cari Internet was the only non-NGO. During the discussion, the idea of Internet Blackout Day – a virtual strike when several U.S. sites protested the Protect IP Act (PIPA) and Stop Online Piracy Act (SOPA) – was brought up and adopted by us.

In this Internet Blackout Day, we decided that participating websites will have a popup highlighting the effects of 114A. We managed to get Malaysiakini, BFM and a few other prominent websites involved. Soon, well known online personalities like Sultan Muzaffar and Nikicheong came on board.

I first met Sultan Muzaffar when we shot the Astro B.yond TVC in January 2010. I met him again at Timothy Tiah & Audrey’s wedding. I told him about our intention to organise the Internet Blackout Day. He agreed without hesitation. If you haven’t realise, Sultan Muzaffar has more than 200,000 followers on Twitter!

3 days before our Internet Blackout Day, National Young Lawyers Committee, CIJ and LoyarBurok jointly organized a forum on 114A at the Bar Council. Deputy Minister of the Ministry of Higher Education, Dato Saifuddin Abdullah, lawyers Faisal Moideen and K Shanmuga and myself were invited as speakers. All of us except Faisal were against 114A. Faisal on the other hand was not against 114A but said that one part of the section is too wide.

The participants were given a chance to vote before and after the talk ie whether in support of 114A or not. Before the event, 30 over people is against 114A but 6 is in support. After the talk, 50 over people voted against 114A and none supported 114A!

The good news for me is that Dato Saifuddin Abdullah has mentioned that he will rally his fellow BN members to act against 114A.

On 13 August 2012, we probably had about 20 participating websites. The Stop114A Facebook group had only 400 likes. By evening of 13 August 2012, Twitterjaya was buzzed with the #stop114a hashtag. By midnight, participating websites activated the #stop114A popup and banners. More websites started to join the cause. Someone even created a Wikipedia page to mark this event.

The response started to grow and eventually it exploded! By midnight of 14 August 2012, the Stop114A Facebook group had 43,000 likes.

It was number 2 on the Malaysia Twitter trending list. It’s should be number 1 on the Malaysia Twitter trends because the no. 1 trending topic was also trending worldwide.

www.xes.cx participated as well.

This is probably one of Malaysia’s most successful social media campaign.

It gained so much attention that Australia, United Kingdom and United States media reported about it. I was contacted by BBC Radio to be part of a live discussion but unfortunately, when I was about to go live, they dropped by participation. I guess they had enough participants.

In the evening, Prime Minister Datuk Seri Najib Abdul Razak tweeted: “I have asked the cabinet to discuss section 114A of the Evidence Act 1950. Whatever we do we must put people first.”. It felt like victory to us but it was not enough until the amendments get repealed.

Unfortunately, weeks later the PM announced that they will keep 114A to protect the people.

Notwithstanding all these bad news, we’ve not given up. We’re still engaging various people to persuade the Government to repeal the law.

To me, this new law brought me new experience, insights and network. Lobbying for legislative changes is something I’ve never thought I would do in my legal practice.

I will update everyone again if there are any positive changes.

Media Features Overload

Well, two more media features to be mentioned here. Following from CIJ’s forum “Section 114A Evidence Act: Crime-busting or Online Control?” organised by Centre for Independent Journalism (CIJ), Selangor Times reported the following:-

Writer: Basil Foo
Published: Fri, 15 Jun 2012

KUALA LUMPUR: Internet users whose accounts are hacked into will be presumed guilty for unlawful online posts by the actual perpetrators under recent amendments to the Evidence Act, something that is being criticised as absurd.

The Evidence (Amendment) (No 2) Act 2012 will reportedly hold Internet users liable for any content posted through their registered networks or data processing devices.

“For example, if someone parks outside your house and uses your Wifi to post (illegal content online),” said KL Bar Council IT committee co-chairman Foong Cheng Leong.

Participants are all ears at the forum.

He was speaking during the “Section 114A Evidence Act: Crime-busting or Online Control?” forum at the KL-Selangor Chinese Assembly Hall recently.

Foong said laws presuming guilt have always been around, including for individuals who were deemed to be traffickers if they were arrested with a certain amount of drugs.

“The Dangerous Drugs Act (discourages) people from carrying drugs. Will this Act (discourage) people from using the Internet?” he asked.

Center for Independent Journalism (CIJ) director Jac SM Kee said the Act was illogical as victims who sought help after their accounts had been hacked or report the crime to police may find themselves behind bars.

Even if someone else posts an offensive comment on a person’s Facebook wall, the latter could be found guilty.

“Business will be affected. If they provide Wifi (and offensive items are posted through their connection), they are responsible,” said BFM Media Sdn Bhd producer Jeff Sandhu.

He said if restaurants in the city are required by law to provide free Wifi and their Internet connections are open to abuse by irresponsible users, business owners will find themselves caught between a rock and a hard place.

Digital News Asia executive editor A Asohan said the Act put average Internet users at the mercy of tech-savvy users who could abuse the former’s unsecure Internet connections.

He said an analyst from investment firm Mackenzie traced 4.1 per cent of the nation’s Gross Domestic Product (GDP) coming from online activities.

“You want to create a high income nation, this is going to put damper on it. You can’t have an Internet community when people fear to go on the Internet,” he added.

Subsequently, BFM Radio interviewed me to speak about the Evidence Act amendments:-

Lawyer Foong Cheng Leong breaks down the Evidence Act to us, and explains how such regulations affect the ordinary Internet user in the country.

More Media Features

I noticed that whenever I write an article, it will have a ripple effect. The latest was probably my article on “All Lawyers should have an iPad” which led me to a trip to Fukuoka, Japan.

My article “Grave Repercussions for Internet Users” probably has the biggest effect on me. I got my name mentioned in newspaper and online media such The Sun, The Star, Malaysia Insider and Malaysia Today. Now it has gone to another level.

Just few days ago, I was featured in The Malaysian Observer.TV (also known as www.mobtv.my), an internet TV portal and also Malaysiakini.

You can watch the MobTV interview here.

As for the Malaysiakini article and podcast, check out the article below:-

Podcast: Onus is on you to prove your cyber innocence

For our 15th Middle Malaysia podcast, we speak to Foong Cheng Leong, co-chair of the KL Bar IT Committee, about the new amendments to the Evidence Act. It was Foong who first broke the news about the new amendments via an article on the LoyarBurok blog.

He says the article at first didn’t garner much attention. That all changed when theSun published a front-page article based on it. Now, everyone’s talking about the serious implications of the new amendments.

Foong gives a broad overview of what the new law is all about and explains why it should be of grave concern for all those who use the Internet. He also gives his opinion on different social media scenarios where the Evidence Act could be applied.

His concerns, however, are not just on how this new law could affect criminal and politically-charged cases but also civil cases.

Lastly, he gives an example of how this law could affect cases concerning election offences and gives a real-life example of a past case that probably would have turned out very differently had the new law been in place then.

Foong, who often comments about IT issues, is totally against this law and is working towards having it repealed.

You can listen to the podcast here or below.

The podcast was actually recorded through Skype using my Samsung Series 5 Ultrabook at around 1am. I had to leave for Singapore the next day hence Oon had to accommodate my last night request. The quality of the recording is not bad. My Dad thought it was recorded at a studio!

In the meantime, please sign the petition against the amendment bill here.

Frankly, I’ve never watched or listen to the above interviews. I hate listening to myself. Sometimes I wonder how can people stand my voice. It’s so squeaky.

But my message to all young lawyers out there, if you want to put your name out there, write as much as you can and post them online. The internet will promote it for you.

Quoted in The Star

Subsequent to my LoyarBurok article and feature in The Sun Daily, I was interviewed by The Star newspaper regarding my disapproval to the new evidence amendment act. A short quote was featured in The Star’s article entitled Amendment not justified, say groups. The full article can be read below.

When I was interviewed on the phone, the reporter said that someone may be listening to our conversation. I hope it’s not true.

PETALING JAYA: The amendment to the Evidence Act transfers the burden of proof to the accused, which is contrary to the principle of justice, said lawyers and Internet users.

“At any trial, whether criminal or civil cases, it is up to the prosecutor to prove guilt beyond reasonable doubt. Now the burden will be shifted to the accused to disprove (the allegation against them),” said human rights lawyer Edmund Bon.

He added: “All around the world where there is Internet any reasonable person would be against the posting of hate messages. But whether the Government should step in and take such control is another matter.”

Disputing that the amendment will bring more people to justice, Bon said that it will instead reduce the need for the police and other enforcement agencies to be thorough in their investigations.

He believed that current defamation and sedition laws were enough to curb offensive and criminal messages on the Internet.

Intellectual property lawyer and Kuala Lumpur Bar Information Technology Committee co-chairman Foong Cheng Leong said the amendment would be a source of harassment to people whose identities have been abused to send offensive or threatening messages.

“Say it is an elderly person who subscribes to the Internet and does not know how to secure his wifi account.

“If someone uses that unsecured wifi to upload all these offensive postings, it’s the elderly man who will get into trouble,” he said.

However, he agreed that it was difficult to trace the author of the offensive material, especially when international servers or public computers are used.

“But changing the law is taking the easy way out,” said Foong, who authored an extensive article about the amendment on the Loyar Burok website.

Meanwhile, many have tweeted their disapproval for the amendment, claiming that people would have to “flip over backwards to prove their innocence”.

At the same time, some have voiced their support for the amendment, especially those who have been on the receiving end of hate messages.

“These anonymous writers of hate messages against me are gutless and stupid.

“They help justify the Government’s proposal to amend the Evidence Act,” tweeted lawyer Roger Tan who had been criticised for writing a critique on the recent Malaysian Bar extraordinary general meeting.

You should also read the article below. The table below is a reproduction of a part of my LoyarBurok article.

Cyber bullies and stalkers often get away because of lack of evidence

PETALING JAYA: “It wasn’t me.” That’s the most common response from people when a hate or threatening message is traced to their Facebook or Twitter or any other Internet account.

The Malaysian Communications and Multimedia Commission says it is almost legally impossible to take action if all that a person has to do is to deny any responsibility.

“Think of the victims. People who have been slandered or whose lives have been threatened,” commission chairman Datuk Mohamed Sharil Mohamed Tarmizi said, adding that many a time cyber bullies and stalkers who often use “the cloak of anonymity” have got away because of lack of evidence.

“As more of the young are connected online, who is going to watch over these kids when there are real people who want to harm them?” he said in an interview on the amendment to the Evidence Act passed by the Dewan Rakyat last month.

Answering critics who said the amendment was unfair in pushing the burden of proof to the accused, he said that owners of Internet accounts where hate messages had originated could easily rebut charges against them if they were innocent.

“For example, if you can produce witnesses to say that you were nowhere near your computer or any other communicating device at the time the message was sent out, you can get off,” Sharil said.

He added: “It is not easy nailing offenders to the charge. Sometimes you can find evidence and sometimes you can’t.

“At least now (with the amendment), a flat denial (from the accused) cannot work anymore.”

The amendment to Section 114(a) of the Evidence Act includes the following stipulations:

> If your name, photograph or pseudonym appears on any publication depicting yourself as the author, you are deemed to have published the content.

> If a posting comes from your Internet or phone account, you are deemed to be the publisher unless the contrary is proved.

> If you have the control or custody of any computer which published any material, you are presumed to be the publisher unless proven otherwise.

Asked if the amendment infringed on Internet users’ personal liberties, Sharil said the authorities would still have to carry out rigorous and thorough investigations before charging anyone.

“Then there is the trial processs to go through,” he added.

He admitted that the conviction rate of suspected cyber offenders was very low.

From 2009 to 2011, 625 cases of people making obscene or offensive comments via the Internet or phone were investigated.

Only 16 were brought to court and just three were convicted.

Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz said it was difficult to prosecute offenders before the amendment to the Act.

“It was especially difficult to prosecute offenders because the servers were located overseas.

“Everything was in a mess,” he said, and denied that the amendment was to curb dissent.

“The Government does not want to stifle anyone. But we don’t want people to slander or threaten others,” Nazri added.

Related Story:
Cyber bullies and stalkers often get away because of lack of evidence

Featured in the Sun Daily

I was quoted on The Sun Daily recently regarding the amendment of the Evidence Act 1950. I wrote an article criticizing the amendment in LoyarBurok last month. It didn’t get picked up by the media until recently. The Sun Daily’s article is reproduced in full below:-

Internet users cry foul over amendment to Evidence Act

Michelle Chun

PETALING JAYA (May 20, 2012): The recently passed Evidence (Amendment) (No 2) Act 2012, whereby internet users are held liable for any content posted through their registered networks or data processing device, is both unfair and an attempt to put fear in people, says civil society.

The amended law will have serious repercussions on internet use as the owner of the site or device is presumed guilty and has to fight to prove his innocence, they say.

What this means is, if an anonymous person posts content said to be offensive on your Facebook wall, or if someone piggybacks your WiFi account and uploads a controversial document, you will be immediately deemed the publisher of the content and subject to prosecution under the relevant laws such as the Sedition Act.

Not only that, if a person starts a blog in your name and publishes content that is red-flagged, you will be considered the publisher unless you can prove otherwise.

All of this is provided for through the insertion of Section 114A into the Act which was recently bulldozed through both houses of Parliament in its last meeting with no debate.

Section 114A, which explains presumption of fact in publication, states:

– 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.

– 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.

– 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. (Computer here means any data processing device, including tablets, laptops and mobile phones.)

Kuala Lumpur Bar Information Technology Committee co-chairman Foong Cheng Leong told theSun these amendments would put fear in people.

“We shouldn’t even be discussing this law because it is based on the idea that one is presumed being guilty until proven innocent.

“Why does the owner of a site, or Facebook account, have to take the rap and prove his innocence while being subject to investigation and seizure of property?” he asked.

Minister in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz, while winding up the Bill in Parliament on April 18, had said the use of pseudonyms and anonymity by any party to commit cyber crimes made it difficult for action to be taken against them.

Hence, he said the Evidence Act 1950 had to be amended to address the issue of internet anonymity.

However, Internet Society Malaysian Chapter chairman Julian Vincent told theSun such amendments could be open to abuse by the investigators and force an innocent party to rebut the presumption of guilt at serious risk of wrongful prosecution and injustice.

“In the internet environment where the websites even of the largest organisations are susceptible to hacking and manipulation, it is dangerous to have this presumption in place.

“The society expresses its hope that the cabinet will revise the current text and work to address privacy considerations and protect citizens’ rights and civil liberties in any future cyber security legislation,” he said.

Centre for Independent Journalism executive officer Masjaliza Hamzah said the amendments were a definite threat to freedom of expression and media freedom.

“The amendments are clearly an indirect way to control online content as it makes online sites responsible for comments posted by readers; forget about disclaimers on the comment section.

“This may force some sites to stop the comment feature because having to vet comments themselves may become untenable, and if this happens, it has a huge impact on the interactive nature of online media favoured by readers,” she said when contacted.

A blogger known as Obefiend added such amendments would make it difficult for people to prove their innocence because everything is hackable when dealing with the online world.

“There always is ambiguous evidence when dealing with electronic presence, which makes proving you are indeed not the publisher very tough,” said the blogger, who writes on Blog Serius.

“It’s very scary and distressing to know that if somebody uses my name, I am automatically presumed guilty and have to prove my innocence,” he said.

My full article published on LoyarBurok is also produced below:-

Grave repercussions for internet users

Dissecting the presumption of fact relating to publication in the controversial new Bill.

The Evidence (Amendment) (No. 2) Bill 2012 was one of the bills rushed and passed by the Parliament recently. Minister in the Prime Minister’s Department, Datuk Seri Mohamed Nazri Aziz, when winding up the Evidence (Amendment) Bill 2012, said the use of pseudonyms or anonymity by any party to do cyber crimes had made it difficult for the action to be taken against them. Hence, the Evidence Act 1950 must be amended to address the issue of Internet anonymity.

The amendments introduced s. 114A into the Evidence Act 1950 to provide for the presumption of fact in publication in order to facilitate the identification and proving of the identity of an anonymous person involved in publication through the internet. In simple words, s. 114A introduces 3 circumstances where an Internet user is deemed to be a publisher of a content unless proven otherwise by him or her.

Although it is stated that the amendment is to cover anonymous persons on the internet, the effect of the amendment is quite wide. You see, we, especially social media network users, generally do not use our real names on the Internet. We use nicknames and pseudonyms. Our home addresses do not appear on our account. We sometimes use fictional characters or even digitalized images of ourselves as our profile picture. All these are done to protect our own privacy. So, if none of my personal details appear on my account, does this mean I am anonymous? If someone’s identity cannot be directly ascertained from his account, I would think that he would be anonymous.

The new 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. If you have a Facebook page and an user posts something on your wall, 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 custory 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. So if someone “tweetjacks” you or naughtily updates your Facebook with something offensive, you are deemed to be the publisher unless you prove otherwise.

Admittedly, the amendments certainly saves a lot of the investigator’s time. It is very difficult to trace someone on the Internet. It will make prosecution for, among others, defamation, offences under the Communication and Multimedia Act 1998 and Computer Crimes Act 1997 and, election offences much easier. But it is not impossible to trace someone. There are many cases where perpetrators are caught and charged.

I do not see the logic to deem someone to be a publisher. If an investigator is unable to trace the anonymous internet user, then why should the innocent Internet user take the rap? The onus of proof should always be on the prosecuting side. In the English case of Applause Store Productions Limited & Anor v Grant Raphael [2008] EWHC 1781 (QB), the claimants were awarded £22,000 in damages against Raphael, an old school friend, who had created a false personal profile of the claimants on Facebook. The claimants convinced the Court that Raphael was the person who created the fake profile even though he claimed that he had a party at his house and someone in that party created the account.

In summary, the new amendments force an innocent party to show that he is not the publisher. Victims of stolen identity or hacking would have a lot more problems to fix. Since computers can be easily manipulated and identity theft is quite rampant, it is dangerous to put the onus on internet users. An internet user will need to give an alibi that it wasn’t him. He needs to prove that he has no access to the computer at that time of publication and he needs to produce call witnesses to support his alibi.

Clearly, it is against our very fundamental principal of “innocent until proven guilty”. With general election looming, I fear this amendment will be used oppressively. Fortunately, the amendment is not in force yet. I strongly hope that the government will relook into this amendment.

Unfortunately, Datuk Seri Mohamed Nazri Aziz said that there will be no withdrawal of the amendment.

That seems to be the current unfortunate position. I am trying to find all the possible ways to engage the Government to withdraw this Bill. Please spread the message on the repercussions on this Bill.