Download Is Internet freedom under threat in Malaysia?
That’s the question many Malaysians are asking when a new section was introduced to the Evidence Act in April.
It basically creates a legal presumption that a person is the author of any content if it appears in his registered network or computer.
This means, a cafe owner could be hauled to court for publishing defamatory statements online even if he’s merely providing free Wi-Fi to customers.
Clarence Chua examines the implications that this new law may have on internet users in Malaysia.
It’s Tuesday, August 14th.
Around 45 websites and popular blogs in Malaysia went black in protest as Abigail de Vries from the Center for Independent Journalism explains.
“To protest against this law we are organizing an internet blackout day. We are getting news sites, very prominent bloggers, one, either up-load a pop-up window that explains why this website is being blacked out or two, if you have Facebook or Twitter, to change your profile pictures to black.”
The new section 114A automatically assumes that a person is the publisher of any content as long as it appears in that person’s network or computer, unless the contrary is proved.
I met up with the Bar Council’s Information Technology Committee Co-Chairperson Foong Cheng Leong at a recent forum on Internet Freedom.
He says the section shifts the burden of proof to the accused.
“There are 3 types of burden, they have shifted it. First of all is the website owners, publisher, they’re all the same thing. You’re deemed to be the publisher. And secondly is that if the content comes from your phone or your device, you are deemed the publisher. And the third one, if it comes from your internet account, then you’re deemed to be the publisher. So in normal law, if you want to assert something you have to prove it, now it’s the other way round. Now the defendant has to prove it.”
In other words, you’ll be held responsible if someone posts something on your Facebook wall or leaves a defamatory comment on your blog.
And the section is so wide that the presumption also applies to owners of cafes who provide free wi-fi to customers.
Foong says that’s bad for business.
“Websites make money through traffic. No traffic, no advertisement, no money. If you look at Facebook, all they provide is a platform. The contents are generated by users. And if Facebook wants to come to Malaysia, they won’t, because of this law. They surely don’t want to be liable to what their users say.”
Many free speech activists feel that the government is backtracking on its earlier promise not to censor the internet.
In the 1990s, Prime Minister Mahathir Mohamad launched the Multimedia Super Corridor or MSC to develope the country’s internet communication technology sector.
Fahri Azzat is from the NGO, Malaysian Centre for Constitutionalism and Human Rights.
“Mahathir said that there would be no censorship of the internet. This was subsequently reflected in the MSC Malaysia Bill of Guarantees, Item 6 where they actually said they wanted to be a regional leader in intellectual property and cyber laws. This has been statutorily encoded in the Multimedia and Communications Act, where in section 3(3) they even go and provide that no provision in that Act should be construed as allowing internet censorship.”
The government says this is necessary to combat terrorism and cyber crimes since the Internal Security Act, which allows detention without trial, had been repealed.
The controversial amendment was tabled by de facto Law Minister Nazri Aziz and was passed in April this year.
But Fahri Azzat says he fails to see the link between the new section and threat of terrorism.
Instead, he says that shifting the burden of proof threatens individual rights.
“The reason simply because of that, because it is about the protection of the individual against the state. That has always been the burden of proof; it is for the government to prove it. If there isn’t that necessity to prove, it opens the door for tyranny. And we usually do not have access to the machinery to do this, we do not have the funds to do this, we are almost as good as being convicted.”
But laywer Faisal Moideen argues that the presumption of “fact of publication” is not the only element to prove one guilty in court.
“Even without this amendment, in any trial or proceeding the evidential burden will shift from time to time from the prosecution to the defendant, vice versa. It shifts the evidential burden. But even if you fail to other elements of the crime still must be proven and that burden remain with the prosecution, remains with the plaintiff. Malaysia is one of the more active users in social media, so it’s a timely law. I can understand the concern but being in legal practice, I look at it as a procedural matter. It doesn’t create a new offence. It doesn’t attach a liability, it’s only a presumption as to the fact of publication.”
One day after the Internet Blackout Day, Prime Minister Najib Razak directed the Cabinet to review the amendment.
But until it is repealed or amended, the accused still has to prove that he’s not guilty.
So is Malaysia planning to go back on its promise on internet censorship?
Judging from the number of blacked out blogs and websites many active Internet users certainly think so.
