Section 114A, referred to as the Presumption of Fact in Publication, was introduced via the Evidence (Amendment) (No 2) Act 2012 (A1432) (the Amendment Act). The section reads as follows:
THE ANONYMITY ISSUE
- 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.
- For the purpose of this section
- 'network service' and ‘network service provider’ have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998; and
- '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.
According to Datuk Seri Mohamed Nazri Aziz, Minister in the Prime Minister Department, the amendments were tabled to address the issue of Internet anonymity since this very fact makes it extremely difficult, if not impossible, to trace the alleged offender.
According to sub-section (1) of the new provision, if your name, photograph or pseudonym appears on any publication on the Internet, representing yourself as the publisher, you are presumed to have published the contents of such publication. For example, if someone creates a blogsite in your name, you are presumed to have published the contents on that site, unless you prove otherwise. If someone posts a comment on your blog, you are also presumed to have published it. This will apply to Facebook, Twitter, or any form of social networking service, where you are deemed to have published anything posted on their wall, if that posting is published under your name.
A scrutiny of subsection (2) also appears to have serious consequences. If a posting originates from your account with a network service provider, you are deemed to be the publisher unless the contrary is proved.
A further presumption in subsection (3) is for the contents that originate from a computer. You are deemed to be the publisher so long as your computer was the device used to post that content.
THE BURDEN OF PROOF
The amendments have caused some uneasiness as they tend to impose the burden on the person to prove his innocence, as opposed to the prosecution to prove his guilt. Considering the rampancy of cybercrime, the concern is that reversing the burden in this manner may perpetuate more crimes. Furthermore, since computers may be easily manipulated and hacked into, the issue is whether it is too risky to put the onus on Internet users to prove their innocence.
A further issue is whether the amendment is a violation of the presumption of innocence.
An analogy has been drawn to section 88 of the Evidence Act 1950 which deals with the Presumption as to the telegraphic messages. The section reads:
The court may presume that a message forwarded from a telegraph office to the person to whom it purports to be addressed corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the court shall not make any presumption as to the person by whom the message was delivered for transmission.
If the court shall not make any presumption as to the person by whom the message was delivered for transmission, does it make sense for the court to presume the identity of the person who publishes the messages over the electronic medium?
PRESUMPTION OF FACT
The first question that one may ask is whether this presumption is automatically invoked. Although the words 'is presumed' are used, the section is referred to as a Presumption of Fact in Publication. A presumption of fact gives the court the discretion to invoke it and such discretion is based on the facts and circumstances of each case. It could be argued therefore that the presumption is not automatic and the court will have to consider the circumstances of the case before it invokes the presumption. Hence to say that the presumption is an automatic assumption of guilt may not be entirely accurate as the provision is left to judicial interpretation.
Another interesting point to note is the existing provision in the Evidence Act 1950 which already gives the court the discretion to invoke presumptions. The provision in the current section 114 states that 'the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.'
This provision suggests that the court may already invoke a presumption that could have the same effect as section 114A, except for the fact that section 114A is more specific.
The second consideration is that the presumptions in section 114A are rebuttable. In fact, most presumptions are. There are only a couple of presumptions that are irrebuttable, that is, where the law presumes a fact and makes it conclusive proof of it. Hence, it is important to note that the presumptions in the new section 114A are not conclusive proof.
The argument, however, is that there may be difficulties in rebutting this presumption. Not only could the lay person find it difficult to navigate his way through the maze of technology, there may be other legal hindrances, such as the provision in section 90A(7) of the Evidence Act 1950 which refers to evidence given on behalf of the accused person.
The sub-section reads:
Notwithstanding anything contained in this section, a document produced by a computer, or a statement contained in such document, shall not be admissible in evidence… where it is given in evidence by or on behalf of the person who is charged with an offence in such proceeding the person so charged with the offence being a person who was (a) responsible for the management of the operation of that computer or for the conduct of the activities for which that computer was used; or (b) in any manner or to any extent involved, directly or indirectly, in the production of the document by the computer.
This raises questions on the difficulty to rebut the presumption in the proposed section 114A.
The authorities have given their assurance that the section is not as oppressive as it sounds, but only time will tell how this controversial section will be interpreted by the Malaysian courts.