'Evidence Act not death knell for news portals'

One of the amendments to the Evidence Act 1950 - section 114(a) which has yet to be gazetted - has raised concerns that cybertroopers will, in acts of sabotage, flood online news portals with seditious comments.

However, this is a misconception, even though the changes to the Act have raised serious concerns, says the Bar Council's constitutional law committee head Syahredzan Johan.

"If the comments are hosted on the news portal's server but they were posted from an outside source, it will not really impact the news portal as it did not come from its own network," Syahredzan said.

A problem would only arise, he said, if the posting was made from within the news portal's Internet connection.

Section 114(a) states that if a publication originates from one's machine or network, it is presumed the owner is behind the publication, unless proven otherwise.

"The other presumption is that if one's photograph or name appears on the publication (as author), then one is presumed to be the editor or publisher.

"Every comment will have its own photograph or pseudonym (moniker), therefore those posting them will be the ones considered the publishers. I don't think, in this scenario, it will affect (news portals) much," Syahredzan said.

The amendment does not create a new offence, but is a procedural change which will make it much easier for the prosecution to prove its case.

"It is not accurate to say that it automatically proves guilt, for there are other elements that must also be proved.

"For example, in a sedition case, it may be easier for the prosecution to show that someone uttered, posted or published something - but uttering itself is not an offence.

"The prosecution must still prove other elements, such as that the comments had seditious tendencies," he said.

More power to already powerful prosecution 

However, Syahredzan said the amendment was "unnecessary" and "disproportionate" as it would give more power to the prosecutor in an already non-level playing field, where the law should instead be protecting the more vulnerable accused person.

"The rules of evidence are to govern how trials are conducted as well as to safeguard the rights of the accused, as in criminal cases, where the prosecution has its entire machinery to investigate but all the accused has is his or her lawyer," he said.

The changes will bring more harm than good, as they will make people be more cautious in expressing their views and become reluctant in sharing their machines with others.

"If you forget to logout and someone uses your computer to post something bad on Twitter... not everyone will be able to remember where they were or what they were doing at that time to prove that the posting did not come from them," Syahredzan said.

The controversial amendment was passed by the Dewan Negara in May and is now awaiting the Agong's consent before it is gazetted and comes into effect.