The Malaysian legislature has introduced a new Section 114A into the Evidence Act 1950. The Evidence (Amendment) (No. 2) Act 2012 came into force on 31 July 2012 (vide PU(B) 255/2012). The new Section 114A states:
114A. Presumption of fact in publication
(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.
What’s the effect of Section 114A?
This amendment will significantly impact the law governing internet publications by persons in Malaysia, including news reporting, blogging and interactions in social media. The amendment will allow the prosecution or a plaintiff to rely on a presumption of fact to prove the identity of the person responsible for an internet publication. Essentially, the internet user identified under Section 114A is deemed to be the publisher of the content, unless the internet user proves otherwise. Hence, the burden of proof has shifted.
This amendment to the law of evidence in Malaysia has far-reaching consequences for internet users. It will facilitate proving offences under the Communications and Multimedia Act 1998, the Computer Crimes Act 1997 and the Sedition Act 1948 against internet users. It will also ease proving defamation claims based on online publications. While the Malaysian government has defended the amendment as being necessary to protect the public interest, the internet community in Malaysia has reacted with an uproar.
Stop 114A: 14 August 2012 Internet Blackout Day
In protest against the amendment, the Centre for Independent Journalism (CIJ) organised the Internet Blackout Day to campaign against the newly introduced Section 114A and to call on the Malaysian government to withdraw the Evidence (Amendment) (No. 2) Act.
The Malaysian Bar took down their website in support of the Internet Blackout Day, while the Democratic Action Party (DAP) shut down all websites administered by them.
The Internet Blackout Day pop-up was also supported by media sites such as FreeMalaysiaToday, Malaysiakini, Digital News Asia, The Nut Graph, BFM 89.9, Merdeka Review, and party organ news sites Harakah Daily and Keadilan Daily.
