Amendment will have chilling effect on Net use and free speech

Netizens set up Facebook page and online petition opposing it

A GROUP of concerned netizens in Malaysia, spearheaded by the Center of Independent Journalism (CIJ), is calling on the Government to withdraw the amendment to the Evidence Act 1950, which civil advocates say will have serious repercussions on Internet use and freedom of expression in the country.

They have started a Facebook page 1Million Malaysians against Evidence (Amendment) (No2) Act 2012 and an online petition Netizens against Evidence (Amendment) (No2) Act 2012.

With the amendment, the owner of any site or device is presumed guilty and has to fight to prove his innocence if there are any seditious or defamatory comments posted.

theSun earlier reported that this means that “if an anonymous person posts content said to be offensive on your Facebook wall, or if someone piggybacks your WiFi account and uploads a controversial document, you will be immediately deemed the publisher of the content and subject to prosecution under the relevant laws such as the Sedition Act.”

“Not only that, if a person starts a blog in your name and publishes content that is red-flagged, you will be considered the publisher unless you can prove otherwise,” the daily reported.

The amendment, which was passed in Parliament without debate, has created an uproar. Internet users have been blogging and posting their opposition to the amendments on Facebook and Twitter. Some have noted that the law would instead harm innocent victims of identity theft and hacking, while getting no closer to shoring up enforcement or prosecution powers against the actual perpetrators.

The CIJ decided to act, saying that its mandate is to protect freedom of expression and that this law was clearly a threat to such freedom.

“The staff and directors discussed about how far-reaching the law is and why we need to get the Government to withdraw this bad law,” says CIJ executive director Masjaliza Hamzah.

“It was passed almost by stealth because so many laws were bulldozed through Parliament in a matter of two days in April. This one slipped through our fingers, so to speak,” she adds.

Minister in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz, while winding up the Bill in Parliament on April 18, had said the use of pseudonyms and anonymity by any party to commit cybercrimes made it difficult for action to be taken against them, but did not explain how the proposed amendments addressed this issue.

“We are urging the Government to withdraw these amendments – they did that with the much-opposed amendments to the Election Offences Act,” says Masjaliza.

“There is still time to act because the amendments have yet to be gazetted – you need to gazette a law before it can be enforced,” she adds, saying that the law does not come into effect June 1, as many people have understood.

The amendments to Section 114A of the Evidence Act include:

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.

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.

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. (Computer here means any data processing device, including tablets, laptops and mobile phones.)

In the online petition, the CIJ and netizens state:

We, Netizens who value internet freedom, call on the Malaysian Government to withdraw the Evidence (Amendment) (No2) Act 2012. The amendment which has been passed by both Upper and Lower Houses, has wide-ranging reach and extends to practically everyone who uses any internet platform – from e-mail and social media to blogs and online media. We oppose this amendment for these reasons:

It presumes guilt rather than innocence which contradicts the basis of many justice systems. The newly introduced Section 114(A)* goes against the principle of presumption of innocence meant to protect individuals against wrongful conviction and check against abuse of power by the authorities. It makes Internet intermediaries -- parties that provide online community forums, blogging and hosting services -- liable for content that is published through its services. It can result in the removal of comment functions, which has a huge impact on the interactive nature of online media favoured by Malaysians. It threatens freedom of expression online because the assumption of guilt has the chilling effect of promoting fear amongst those who use the Internet as a vibrant, interactive space for democratic deliberations. It also reduces the spaces for posting legitimate comments and opinions. It allows hackers and cyber criminals to be free by making the person whose account/computer is hacked liable for any content/data which might have changed. The more skilled you are at hacking, the more the law protects you by assuming the party being hacked is guilty of the offence. It reduces the opportunity to be anonymous online which is crucial in promoting a free and open Internet. This principle is particularly important to safeguard vulnerable individuals who depend on the anonymous nature of the Internet to protect themselves, e.g. women in situations of domestic violence who may be at risk if they are identified. Anonymity is also indispensible to protect whistleblowers from persecution by the authorities when they expose abuses of power. The amendment is a bad law passed in haste and does not take into account public interest and participation.



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