LoyarBurok
by Foong Cheng Leong
by Foong Cheng Leong
As published in LoyarBurok on 24 Apr 2012
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.
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