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.
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.
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.
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.
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.
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.
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.
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.