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
By REGINA LEE
regina@thestar.com.my

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
newsdesk@thesundaily.com

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.