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Thursday, June 28, 2012

The presumption of publication

The recent amendment to the Evidence Act 1950 to introduce section 114A has not been without controversy. The Center for Independent Journalism launched an online petition against the section last month. Its basis is the concern that by virtue of the section presuming publication, and as such responsibility for publications, on the part of internet intermediaries and by impeding anonymous expression of thought, free expression on the internet would be undermined. This has particular resonance for Malaysia in light of the way in which the media is regulated.

Though at first glance the argument advanced by CIJ, and other likeminded organisations and individuals is attractive for its championing of free expression, the subject behooves deeper consideration.

Let me state several obvious features of the matter. The media is highly regulated in Malaysia, to an extent that the so-called mainstream media (MSM) is no longer of great relevance to a significant number of Malaysians. As a consequence, Malaysians seek information and opinions on-line from on-line news sites, blogs and the social media. Needless to say in this unregulated sphere expression is robust, unguarded and perhaps in some cases truer. The value of social media to disseminate opinion and information is undoubted and, in light of how things are in Malaysia, it has become a primary means to influencing opinions. Regrettably though it has also resulted in a plethora of anonymous blogs and twitter timelines that routinely publish highly offensive and defamatory content.

Over the years we have seen bloggers and twitter users taken to court for defamation. In the course of my dealings as a lawyer I have had occasion to represent some litigants in such cases. The misperception that many social media users have is that by virtue of the Government’s assurance that the internet would not be censored, people are free to write what they wish without being held to account for the same.

This puts into focus the first of several key features of discussion. Throughout the common law jurisdictions persons who publish defamatory material can be held liable for their having done so. Publishing on the internet is no different from publishing elsewhere in this regard and the same responsibility rests on the author and publisher (if they are different persons) of the offending publication.

The question therefore arises as to whether a person should be entitled to take advantage of technology to publish anonymously and avoid liability. From a strictly legal perspective, I do not see why this should be the case. By this I mean that if there were means to discover who it was that a particular anonymous blogger, and their identity could be ascertained, then that particular person could be made liable.

A second feature then becomes apparent. It centres on the question of whether legislature is permitted to enact presumptions of fact. The short answer is that such presumptions are not as a matter of course repugnant to the law. The statute books are replete with such presumptions. They are in themselves not unconstitutional. The operative presumption here does not in itself undermine the right to expression.

A question may arise as to why it is there is a need for a presumption of publication in light of there being powers in the hands of the authorities, the Multimedia Commission for instance, to determine the identity of anonymous bloggers and so forth.  Private litigants do not have access to the powers and resources of the State and for that reason are too often at a disadvantage. For instance, over the years we have seen how public figures have been made the subject of vicious smear campaigns, and how these persons have been powerless to deal with these vile attacks. Seen in this light, the practical benefit of a section in the Evidence Act that sets up a presumption of publication cannot be denied. It should not be overlooked that presumptions can be rebutted. The CIJ is concerned that hacking may lead to the wrong persons being found culpable. From a strictly legal perspective, if the hacking can be established then one would have an obvious defence.

If I have a reservation, then it is the ambit of the provision. At a recent CIJ forum on the subject, Jeff Sandhu, one of the panelists expressed a concerned that the section may include within its ambit persons who provide free WIFI, as DBKL now requires.  He may have a point. The breadth of the section is cause for concern not only for the fact that it may lead to innocent persons being found to be liable but also for the practical impact it will have on commerce and trade, in particular, as A Asohan pointed out at the same forum, the thriving internet business scene.  The Government may wish to reconsider the scope of the section by reference to the declared intention underlying the section. It is possible that while the aim of the section is not unconstitutional, the breadth of the provision may lead it to being so.

In fairness, it appears that it is the ambiguity of the underlying intention that is fueling many of the concerns. The socio-political considerations are vastly different from the strictly legal ones I have attempted to highlight. The fact remains that a good many Malaysians do not have much faith in the “system” and think of the institutions of the State as having been politicised. The social media has become the principal means of spearheading meaningful reform, as it has in many other parts of the world. Understandably, civil society is concerned that there may be a collateral purpose to the amendment, one aimed at stifling a burgeoning awareness of rights discourse.

Frankly, it is a concern that cannot be dismissed outright having regard to the state of things in the country. The last thing that Malaysia needs right now is the stifling of political consciousness.


(First published in The Edge)


najib manaukau said...

The present watchdog's survival and even thrive on these rules, it may have changed but it is only an occasion for them to close up the gaps. And also to show to the world the scumbags and the parasites are reforming.
Only fools will believe the deceitful and corrupted Umno morons will ever change for the better. They would last even a term if they do and that is why they are the watchdog for the last 53 years. It is not for their services and well being for Malaysians but more so for the constant changes of their deceptions and false and empty promises. The only way out of these shambles is to vote them out of Putrajaya in the coming GE ! End of the bloody shambles, it is better late than never !

flyer168 said...

Dear Malik,

Agree, you have a point there...

Just to share this...

Nazri: Only one ISA replacement law | Free Malaysia Today –

“This is the one we were talking about, supposedly called the anti-terrorism law,”

“This is actually the Terrorism Act...

we did not say it as such because

we didn’t want to scare people,

we didn’t want the same stigma the ISA had,” he said.

Next to share this...

UK Terrorism Act 2006 –

Home Office –

Operation of police powers under the Terrorism Act 2000 and subsequent legislation: arrests, outcomes and stop and searches, quarterly update to September 2011, Great Britain | Home Office –

Contd…Pt 2

flyer168 said...

….Pt 2

Finally to share this...

Communications data | Home Office -

Communications data

On 14 June 2012 the government outlined vital powers to help catch criminals, save lives and protect children in the draft Communications Data Bill.

Draft Communications Data Bill
The command paper is available on the Parliament website.

The bill will ensure law enforcement agencies maintain the ability to tackle crime and terrorism as criminals use modern technology and new ways of communicating to plan and commit crime.

Without action by government crimes enabled by email and the internet will increasingly go undetected and unpunished.

To accompany draft legislation we have undertaken an impact assessment and privacy impact assessment.

The draft communications data bill will be subject to scrutiny by a joint committee of both houses. We anticipate that the membership of the committee will be announced in the coming days.

The Intelligence and Security Committee (ISC) will be conducting its own, independent, inquiry into the draft Communications Bill, as this is an area that impacts on the work of the intelligence agencies.

The ISC intends to work to a similar timetable to, and liaise with, the joint committee undertaking the formal pre-legislative scrutiny.

The facts about communications data
Why is it important?

Communications data has played a role in every major Security Service counter-terrorism operation over the past decade and in 95 per cent of all serious organised crime investigations.

It is vital to law enforcement, especially when dealing with organised crime gangs, paedophile rings and terrorist groups.

It is used by the police and the security agencies in the investigation of all crimes, including terrorism. It enables the police to build a picture of the activities and contacts of a person who is under investigation. It is routinely used as evidence to support prosecutions in court.

What is it?

Communications data is the information about a communication. It can include the time, duration and dialling numbers of a phone call, and the location from which a mobile call is made, or the 'to' and 'from' addresses of an email. Sometimes it includes the location of the originator of the communication.

Contd...Pt 3

flyer168 said...

Also to share this...

05:24 John F. Kennedy Secret Societies Speech – YouTube -

Judge Napolitano: "A nation of sheep breeds a govt. of wolves" – YouTube -

New Ron Paul AD – A Must See By All True American Patriots – – YouTube –!

Judge Napolitano: Why The Patriot Act is Unconstitutional. – YouTube –

Obama Makes Protesting A Felony “Bill HR 347″ – YouTube –

In other words, we are all…!

You be the judge.