Evidence Act – difficult if not impossible to enforce

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KUALA LUMPUR: The latest amendment to the Evidence Act, which provides for action against people who publish statements online, will be difficult if not impossible to enforce, says an anonymous Malaysian blogger.

SatD wrote in his blog Pure Shiite on June 13 that he had signed an online petition against an amendment to the Evidence Act which would “facilitate the identification and proving of the identity of an anonymous person involved in publication through the internet”.

“We are presumed to be the person committing the offense,” SatD wrote. “The explanatory statement clearly describes the intent of the clause is to facilitate the identification of an anonymous person.

“That would be me,” he said.

While much of the criticism of Section 114A of the Evidence Act has focused on whether or not it is ethical, SatD said another major flaw of the amendment is that it will be difficult to enforce.

The blogger highlighted provisions dealing with online statements in the Penal Code and the Communications and Multimedia Act, and placed emphasis on the latter, which says the person making statements deemed to be in contravention of the law must have done so knowingly.

If the authorities believed an anonymous blogger had committed an offense according to those provisions, he said, the first issue they would have is confirming the blogger’s identity.

“To do that they would have to get a court order to compel Blogger or WordPress to disclose the email account that is linked to the site,” he said.

“The Second step would be for the authorities to identify the Internet Protocol address of the user which uses the particular email address to access the Blogger or WordPress admin module for the particular offensive site,” he said.

Identifying the person who made a particular statement becomes more complicated when the statements are ‘retweeted’ on Twitter or are written on another Facebook user’s wall.

“Do you think that they have the capabilities?” he asked.

SatD said there have been cases in which the authorities have been able to identify the person leaving comments on a site. He referred to the case of Chan Hon Keong, an engineer found guilty on June 1 of insulting the Sultan of Perak on his personal website.

However, SatD pointed out that in Chan’s case, the company hosting his website probably provided certain identifying information to the authorities, a level of cooperation unlikely to be extended in every case.

“I still could not figure how the authorities plan, let’s say, to track an anonymous blogger or a commenter who resides outside our jurisdiction,” he said, adding “The cost of enforcement is far too high for them to get access to the IP or the email account.”

The blogger said authorities in the US and UK have also taken steps to deal with online statements, but have come up with solutions that are “far more accommodating and elegantly worded” than Section 114A.

“Ours seems like a quick kampong mari solution to solve a rather complex issue without properly evaluating the technical issues involved,” he said.

“It did not even consider the cooperation of the website owners/operators/blog admins to assist in promoting responsible behaviour on the net,” he said, referring to the fact that the blogger or website owner “would be presumed as the ‘indirect publisher of the said comment’,” even if someone else had actually written the comment.

“In one sentence we are all presumed guilty,” he said.

SatD concluded by challenging the authorities to identify him.

“Why don’t you show me your powers and identify who I am,” he said.

“If you can’t then 114A cannot be implemented in Malaysia…as you will have people like me ‘who will be above the law’.” -mole