Starbucks & McDonalds Contravene Malaysian Evidence Act

As a digital media junkie, I have to express my serious concerns on the recent amendments to the Malaysian Evidence Act 1950, specifically section 114A which says that if seditious/defamatory/offensive content is traced back to your digital device, webpage, or internet network, you are responsible and therefore legally liable for it.

The Government’s rationale is that this new law will curb postings by anonymous bloggers and commentators who are critical of the Government.

The newly inserted Section 114A of the Evidence Act says:

ü  Owners, hosts, administrators, editors or sub-editors of websites or social media accounts are deemed responsible for any content that has been published or re-published on their site whether by themselves, persons impersonating them or any other persons;

ü  Subscribers of a network service which was used to publish or re-publish any content are deemed responsible for the publication; and

ü  Owners or individuals in custody of an electronic device that was used to publish or re-publish any content are deemed responsible for the publication.

There are obviously many flaws with this approach. Websites and social media channels can be hacked. If that happens, the onus is now on you to prove your innocence.

You are now directly responsible for content that is generated from your personal device – when such devices can be borrowed by family/friends/colleagues or worse, stolen.  Even if all you do is allow a friend to use your wifi network, you are deemed liable for postings that your friend makes.

Continuing the “logic” expounded by this argument will surely lead to the arrests of the people responsible for the free wifi services at outlets like Starbucks and McDonalds.

What about the complications that arise from social media sites like Facebook and Twitter?

With Facebook, people don’t need your permission to post on your wall. How many of you are agreeable to monitor your accounts 24/7 to delete offensive posts? Then again, what exactly constitutes an offensive post? Who decides on this?

Facebook has a share function. Let’s say someone posts a link, a comment, an image or a video and you share it with others in your circle - are you then responsible for that posting just because you shared it? Is sharing considered an act of publishing?

In the first place, should comments by other people even begin to be your responsibility? If someone posts something on your facebook wall, and his/her identity is clearly displayed, then logically shouldn’t he/she be the one responsible for his/her comments?

What happens if you “like” a comment that is deemed offensive in facebook? Is that considered publishing?

Twitter on the other hand, has a retweet function making things even more complicated. If someone posts a tweet and you choose to retweet it, you are not the original author nor are you publishing it but are instead sharing it with your followers.

Therefore does retweeting mean you are considered the publisher or should the original writer (whose name will also be displayed) be considered liable? Or are you both in trouble?

To confound the issue further, if you tweet a link to an article, without reproducing any of the original text, is that considered publishing?

I’m sure many of you are asking if there is a reasonable grace period to allow you to remove “offensive” comments. Or is the amendment with immediate effect and there no grace period? Are we all supposed to shut down our respective sites now?

Seriously, unless ambiguities like this are clarified, it would be easy peasy for people to sabotage each other under this “new & improved” Evidence Act. The elections are looming and there’s an all-out cyberwar in the Malaysia cybersphere involving fanatics of both sides of the political landscape.

Our PM actively engages the rakyat via social media. It won’t be long before some mischievous person posts something seditious on the PM’s facebook or twitter timeline. Will the PM then be duly held responsible and arrested?

As any right thinking person can see this amendment is a threat to the freedom of speech that is enshrined in our Federal Constitution.

Already one law, the Election Offences Act has had to be retracted after beeing passed because it was found to be detrimental to all sides in an election.

Surely this is a result of not giving the law enough scrutiny and debate in Parliament. If more time had been given, then surely such faulty laws would not have been hastily passed. It is not quite total lawlessness in Malaysian cyberspace as there are already adequate laws in place to seek redress.

While the following list is not comprehensive, the high profile cases of Dato Ahiruddin “Rocky” Attan, YB Jeff Ooi, Malaysia’s most infamous blogger Raja Petra “RPK” Kamaruddin being found guilty of defamation, blogger Amizudin Ahmat being found guilty of defamation, blogger Chan Hon Keong being found guilty of defamation to the Sultan of Perak while blogger Khairul Nizam Abd Ghani  being acquitted and discharged of insulting the Johor royalty and Twitterers Fahmi Fadzil and R Nadeswaran being found guilty of defamation are testament to that.

Policing cyberspace is not the answer as there are many workarounds known to savvy tech junkies. Engaging the rakyat promptly and diligently providing credible solutions to their concerns is.