The Malaysian Bar appreciates that the problem of anonymity on the Internet is of a different nature to that in the print media. Persons hiding behind the cloak of a false persona can incite racial hatred, incite and organise violent hate crimes and commit fraud and escape being identified. Hence there is a need for some statutory intervention to ensure criminal elements do not exploit the anonymity that the Internet can provide to escape the consequences of their actions.
However, the Malaysian Bar is of the view that the recently–introduced section 114A of the Evidence Act of 19501, which came into force on 31 July 20122 , is not the answer to these problems, and should be repealed. Suitable replacement legislation can be enacted later, if necessary, but only after full consultation with all stakeholders.
Section 114A as it stands creates a presumption that any registered user of network services is presumed to be the publisher of a publication sent from a computer which is linked to that network service, unless the contrary is proved. The section 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.”
Such a section would therefore create a presumption that is so wide that even the owner of a coffee shop that offered a free wi–fi facility could be presumed to have published an online publication originating from a computer using the wi–fi facility. Although it is true that the presumption enacted is merely a rebuttable presumption, dragging such persons into court in the first place, and the embarrassment, cost and inconvenience that an ordinary layperson could be subjected to, cannot be compensated for by any eventual victory.
Such wide and draconian provisions find no equivalent in modern democracies such as Australia, Canada, United Kingdom or United States.
At a forum hosted by the Malaysian Bar as part of the “Siri Pemikiran Kritis” initiative organised by the Malaysian Bar’s National Young Lawyers Committee on 11 Aug 2012, YB Dato’ Saifuddin Abdullah, Deputy Minister for Higher Education, Member of Parliament for Temerloh, and a prolific twitter user, himself admitted that in his view, the section is too wide and its introduction should have seen greater debate in Parliament. This view was echoed by YB Khairy Jamaluddin, UMNO Youth Head and Member of Parliament for Rembau, as reported in the press. It would appear that these concerns are well founded: the first reading of the Bill was on 10 Apr 2012, and the Bill was passed by the Dewan Rakyat with about four hours of debate on 18 Apr 20123.
Both MPs have said they would try and rally Barisan Nasional backbenchers to speak to members of the Cabinet in order to review the section.
We urge Members of Parliament from both sides of the divide to make a bipartisan approach to the Government to take immediate steps to repeal section 114A. In formulating a replacement to section 114A, we urge the Government to embrace an open and transparent process for drafting suitable legislation to address the problems of anonymous cybercrimes by having public consultations with all relevant stakeholders.
The Malaysian Bar suggests that the Ministry of Science, Technology and Innovation and the Malaysian Communications and Multimedia Commission take the lead in this process, and set up an interim task force with the assistance of the Bar Council, civil society actors (such as the Centre for Independent Journalism), industry players and technology experts.
That task force should be entrusted with drafting a White Paper to set the parameters for a comprehensive piece of legislation to address the concerns of all parties in formulating legislation that would balance the rights of reputation, property, free speech and privacy. That White Paper could then be the subject of a public consultation, which would assist the Parliamentary Draftsman to formulate a more comprehensive draft Bill to address this problem. Technology itself may offer a solution to this problem rather than legislation, and this option should also be considered.
Whilst this sort of legislative process is perhaps more far–reaching and would take more time, it is the Malaysian Bar’s view that only such a process can provide a comprehensive piece of legislation that would address the concerns of all parties.
Lim Chee Wee
13 Aug 2012
In order to show solidarity with Malaysian netizens, who have petitioned for the removal of section 114A, the Malaysian Bar will participate in the Internet Blackout Day on 14 Aug 2012 organised by the Centre for Independent Journalism4.
1 Amended by the Evidence (Amendment) (No 2) Act 2012.
2 Carried into force vide PU(B) 255/2012.
3 Hansard shows that debate was from approximately 10:30 am to 1:00 pm, and then from 2:30 pm to 4:00 pm.
4 See http://stop114a.wordpress.com/ for more information on this initiative.