The Presumption of Publication

June 18, 2012

Note: My fellow bloggers please read this carefully and make sure that your comments on this blog are not defamatory. Freedom of Expression must come with responsibility. You must be held accountable for things you write.–Din Merican

The Presumption of Publication

by Malik Imtiaz Sarwar

The recent amendment to the Evidence Act 1950 to introduce Section 114A has not been without controversy. The Centre for Independent Journalism (CJI) launched an online petition against that the section last month.

Its basis is the concern that by virtue of the section presuming publication, and thus responsibility for publication, 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 the light of the way in which the media is regulated.

Though at first glance the argument advanced by the CIJ and other like minded organisations and individual 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 lnger of great relevance to a significant number of Malaysians. As a consequence, Malaysians seek information and opinions online from 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 the light of how things are in Malaysia, it has become a primary means to influence 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 occasions to represent some litigants in such cases. The misconception of many social media users is that by virtue of the government’s assurance that the Internet will not be censored, people are free to write what they wish without being held accountable.

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 the publisher (if they are different persons) of the offending publication.

The question is, is one 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 ascertain the identity of an anonymous blogger, then he could be made liable.

A second feature then becomes apparent. It centers 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 of expression.

So, why is there a need for a presumption of publication when the authorities–the Malaysian Communications and Multimedia Commission, for instance–have the power to determine the identity of anonymous bloggers and so on?

Private litigants do not have access to the power 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 such vile attacks.

Seen in this light, the practical benefit of a section in the Evidence Act, which 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 hacking can be established, then one would have an obvious defence.

If I have a reservation, then it is the ambit of the provision, then it is the ambit of the provision. At a recent CIJ forum on the subject, Jeff Sandhu, one of the panelists, expressed concern that the section may include within its ambit persons who provide free WiFi, as Dewan Bandaraya Kuala Lumpur (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 another panelist A Asohan pointed out at the forum–the thriving Internet business.

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 to it being so.

In fairness, it appears that it is the ambiguity of the underlying intention that is fueling many of the concerns. The sociopolitical 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 been in many 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.

*Malik Imtiaz Sarvar is a practising lawyer and the President of the National Human Rights Society (HAKAM)–The Edge Malaysia, June 18, 2012

14 thoughts on “The Presumption of Publication

  1. In most civilised countries, political parties are barred from owning newspapers and TV stations, to prevent politicians form corrupting or manipulating public opinion in their . Australia and UK are good examples.

    I hope HAKAM can advocate for the freeing of media ownership by political parties (MCA, MIC. and UMNO). The case of allegation of corruption and murder at the highest level of politicians over the French submarine purchase is a case to demonstarte how the public are short chnaged by the politicians owned MSM.


  2. At one level, out of sheer decency and knowing our limits we need to speak our minds and express our thought with respect and within limits. We must never target the person but try to accost the content of the argument intellegently and with decorum. these are principles in life we have been taught through different mediums, our religion, our parents .

    Legally, it is recognised that there is a need to regulate conduct in this sphere of technology. However I must also note that there are already common laws existing to handle that as in the law oftort where one can bring a claim in defamation if one feels one’s reputation has been injured. I have always cautioned that we discourse in a manner fit and proper. there are no rights without accountabilites or consequences. For our govenrment and for the people seeking change.

  3. Khairy said the young voters will be majoy deciding factor in next GE 13 .most of them are not happy with the latest amendment (to the Evidence Act).BN should learn from what happened in recent elections in Singapore.

  4. “Meaningful Reform” in Legalistic jargon?
    According to interpretation of the Powers-that-be:
    1. It means that if one has nothing good to say, one should shut up. Silence it a Virtue. Responsibility is silence.
    2. Discourse is not intercourse, and should only be self ‘inflicted’.
    3. When leaders espouse ‘Lu Tolong.., Gua Tolong’; the peasants are expected to negate their conscience.
    4. A lie does not necessarily mean the failure to carry out actions commensurate with a statement of purpose.
    5. Knowledge and conscience can be wholesome only to the extent, that there must be no questioning of royalty and deity. Faith is mandatory.
    6. Self-censorship is the basic necessity for all morally inept citizens of Lilliputian Gostan-Land.
    7. False accusations, persecution and prosecution is the sole privilege of the Authorities. Otherwise, they will not be authorities.
    CLF, our rallying call is “Silence is NOT golden”. Our style is sophistication in delivery of our message to the powers that be. We will insult no one; but we will be uncompromising on issues of principle. If the government is corrupt, incompetent and irresponsible like what they are now, we will say it loud and clear.And if they want our votes, they will have to listen and respond with action, no longer with words.They will be permitted to act with impunity.–Din Merican

  5. I am glad that those who blog will be made to do so in a responsible manner. In a democracy we must always win our case by the force of argument.Many of us are sometimse not abusive of the government but of people who make comments on this blog. In law schools in the UK, and I hope also in the USA, they teach their students to attack the message and not the messenger. There is no need to be abusive and call people names. Just put your point of view and argue your case.
    I agree fully with what you write (above). That is what I am trying to so that is to encourage my fellow bloggers to deal with the issue(s) or the message (s), not attack the messenger.–Din Merican

  6. In law schools in the UK, and I hope also in the USA, they teach their students to attack the message and not the messenger.- Thumb Logic

    Our UMNO ministers were trained in law in the UK.

    How come they attack Datuk Ambiga personally, instead of her message.??

    In Malaysia, the only way to respond to such bully, is to return the same… the in-your-face approach.

    When they behave like thugs, they should be treated like thugs.

  7. Er.. friends, in Gostan-Land, the Messenger is often times the Message. So what do we do to distinguish the two? Fear of the Lord, is the beginning of wisdom, some say.

    Criticism is okay, so long as it doesn’t impute personal foibles, anatomical mishaps and mentally retarded gross-outs? That’s why it’s getting difficult to discern what is permissible. Some flurs have a very thin and hypersensitive skin. Often, it’s not even their own skin – but they act out of volition that they are moral policemen and conviction that only they have the ‘Gospel’ truth.. Just look at the sheer volume of spurious litigation and ‘Polis’ reports on both sides of the political divide – with the Establishment having the upper (perhaps, more appropriately ‘under’-) hand. That too is okay – gives the starving lawyers something to chew on.

    So long as we don’t have to watch or listen to over-done slap-stick black humor and drivel.

  8. Freedom of Expression must come with responsibility. You must be held accountable for things you write.–Din Merican

    Nobody can disagree with you Dato. Certainly not your readers. But that is NOT the issue here.

    If you allege, you prove. That is an evidentiary rule. Here the law is being turned on its head. The key phrase at the end of the amended Sec. 114(A) of the Evidence Act “unless the contrary is proven” operates to reverse the burden of proof on to you who have been accused of a crime. Don’t confuse this with the legal burden of proof. That doesn’t shift. The latter remains with the accuser. And the standard of proof if civil is still on the balance of probabilities and in criminal cases it is beyond reasonable doubt. There is no new crime being introduced. No amendment being made to the country’s Penal Code.

    There is nothing new here because if you are charged under the dreaded Internal Security Act, you already face the burden of proving why you should not be detained. That places an undue burden on the accused who has no knowledge of what he is supposed to have done or accused of doing. Malaysia does not have the equivalent of the 5th Amendment of the U.S. Constitution which guarantees the rights of due process; and one of those rights is the right to face your accuser.

    If you are accused of a crime you have the right to face your accuser and hear what you have been accused of. In a civil suit for defamation the plaintiff who is a public figure (with a public figure it is not that easy to prove defamation as he will have to show malice on the part of the defendant and not just negligence) will have to come up with proof of statement or statements you have alleged to have made which lower his reputation in the community. The plaintiff does not come to court and ask the defendant to prove why he should NOT be found liable for defamation and pay the plaintiff damages.

    You can see how much more serious in a criminal setting when you have been accused of publishing defamatory material when you face the possibility of incarceration. As somebody who hosts his own blog, it is unreasonable to expect you to be in front of your computer 24/7 checking to see if any of your readers have published defamatory statements or make inflammatory statements aimed at inciting racial discord or worse making seditious remarks. Because then you can be accused of facilitating and re-publishing defamatory statements making them your own.

    Can you be made legally accountable for what somebody else does? The hope is that blogs will be shut down by their owners. The government cannot control the internet but they can those who write. That is their message.

  9. Needless to say the amendment is overly broad and acts not just to dampen the spirit of free expression and association but has the potential of abuse resulting in a perversion in the course of justice. But then there is already a plethora of legislation that has been on the books for years that seeks to do the same. This is just one more nail in the coffin of free speech and association.

  10. “Our UMNO ministers were trained in law in the UK.” — Frank

    If Thumb Logic spends less time sucking his thumb, he would know that Hishamuddin is educated at University of Wales and got his LLM from the London School of Economics and Anifah Aman got his law degree from University of Buckingham (and so did Hanif Omar the former IGP) and Rais Yatim’s alma mater is Univeristy of Singapore. That is just to name four. We don’t send our students to study law in the U.S. – but to Australia and New Zealand and the U.K. The first three Prime Ministers were lawyers educated in the U.K.

  11. Here we have Myanmar opening its doors and Malaysia closing its doors and also the minds of its citizen. Ah Jib Gor should join Kim of North Korea and Fidel Castro of Cuba and make Malaysia a hermit nation.

  12. Agreed, agreed Mr Bean – its such a broad sweep, they merely take a swipe and charge you, and they then fold their arms and do nothing ! Imagine the Authorities of the Government doing nothing. Its the Innocent Accused who has to go round like a blue-arse fly to try & collect evidence and ‘ proof’ to track down the actual Culprit ( or the Murderer), and thus be able to exculpate himself from something that he never did in the first place !

    In legal jargon, the Innocent person has to do do everything in his might to prove the Negative, which is simply saying ” I did not do it ”

    In days to come, this Reversal of Onus, which is meant to be confined to Internet ‘ crimes’ will be extended to all other areas, in order to enable the Authorities & Prosecutors to do Nothing !

  13. st.p

    Try sucking your thumb and you will be able to see the woods for the trees and more importantly the art of reading inbetween the lines.

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