Section 114A of the Evidence Act 2012

August 14th, 2012 by poobalan | View blog reactions Leave a reply »
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The controversial section 114a of the Evidences Act (2012)

Presumption of fact in publication

114A. (1) 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.

(2) 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.

(3) 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.

(4) For the purpose of this section—

(a) “network service” and “network service provider” have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998 [Act 588]; and
(b) “publication” means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer.”

source: http://www.parlimen.gov.my/files/billindex/pdf/2012/DR162012E.pdf

[click for larger view]

In the cartoon above, I think only the second scenario is acceptable. As administrator, you have authority to remove the comment and can do so. But for the other cases, the amended Act will brand the ignorant/unprepared/trusting as criminals.

I can understand the problems faced by authorities in solving cases involving online postings/comments.  And this is not only limited to those “seditious” crimes, but can cover scams, online theft, and other cybercrimes. Its not easy to prove you are the one who did it. Yes, we can trace via IP addresses, mobile phones, cameras, email headers etc. But, the ICT technology evolves fast. Those intent on doing criminal stuff can find ways to circumvent or “hack” their way and hide their tracks.  Its impossible for every person to protect themselves fully.

If this Act comes into play, you can’t claim ignorance easily. You’ll need to protect your internet access, mobile phones, laptops, tablets, PCs from unauthorised use. Not easy. You need to be vigilant and don’t simply borrow your things to others. Don’t share passwords or access codes. Don’t set your accounts to “always logged in” or “remember my password”. There’s so many “don’ts” that you may as well close your internet account and throw away your tablets/laptops!

Perhaps we can find that restaurants and other business may stop providing free Wifi as anything you do may implicate them. Anyone in the chain of providing network service can be charged. Imagine, robbers used your house area to enter another house and rob the owners. Are you an accomplice because robbers made use of facilities provided by you? This may well be the problems faced by kopitiams, for example.

Yes,  these kind of stringent laws can help reduce the fraud and lies, but at what expense?

Do you expect the citizen to be IT savvy? Do you expect him to be ace investigator who can prove he did not do it? By shifting the burden of proof to the accused, the accused is now a policeman who is to find prove of his innocence? Perhaps he need to enrol in ICT Security courses in order to be vigilant.

Do you notice the word “presumed” in the amendments? So, one is presumed guilty instead of presumed innocent. If you retweet or share a FB status that’s deemed a criminal posting, yes, you are part of the criminals. If you forward emails, same too.

DNAs and fingerprints can be used to nail criminals. Are user accounts, IP addresses, MAC addresses, email address etc.  now considered as  DNAs and fingerprints? Are these tamper-proof?

In our overzealousness to solve crimes, hopefully we don’t punish the innocent.

An article in the Star today:

Things looked vastly different Tuesday on several popular websites that had pledged their support to the campaign against the controversial Evidence Act amendment (no. 2).

Black pop-ups on their main pages greeted website visitors, explaining to them about the recently gazetted Section 1114(a) of the Act which presumes guilt on the part of Internet users.

Bloggers such as The Star columnists Marina Mahathir and Niki Cheong also took part in the Internet Blackout Day, posting up the pop-ups and banners which plainly said “Stop 114A”.

News portals Malaysiakini and Free Malaysia Today as well as the Bar Council website also put up the pop-ups on their websites, together with online journal Loyar Burok.

Scores of local Internet users changed their profile pictures on their Twitter and Facebook accounts to a black “Stop 114A” button.

The Internet Blackout Day is coordinated by the Center of Independent Journalism as part of the “Stop 114A” campaign.

It called for Internet users to show their displeasure by blackening out their websites and profile pictures in protest of the amendment, which would automatically presume guilt on Internet users for offensive postings made using their identities or devices.

However, some Internet users opted for a harder approach and going offline completely.

source: http://thestar.com.my/news/story.asp?file=/2012/8/14/nation/20120814122218&sec=nation

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