Legal changes may blight Penang's WiFi project

The Penang government will consult its legal advisers over the implications of the amendments to the Evidence Act to the state’s plans to provide state-wide free WiFi coverage.

Jelutong MP Jeff Ooi (left), who chairs the state’s telecommunications taskforce, said the amendments might come in conflict with the Communications and Multimedia Act (CMA).

He said that based on his understanding of the CMA, WiFi implementers such as the Penang government should be defined as carriers, which should not be affected by the amendments.

He said when the CMA was first introduced, telecommunications companies had used this as a legal defence if libellous content were transmitted over their networks.

“We have to study whether it is valid as far as the Evidence Act is concerned. We have yet to fathom the impact of this Act regarding WiFi providers as innocent carriers,” said the political blogger-turned-parliamentarian.

Who is deemed the publisher?

Ooi told Malaysiakini that WiFi providers should be considered “innocent carriers” because they are not actively involved in writing contentious material.

The state’s ‘Wireless@Penang’ project started in 2011 to fulfill an election promise made in 2008, which cost the state RM8.5 million to provide 1,500 free wireless hotspots for the public.                       

The Evidence (Amendment) (No 2) Act 2012 presumes that when a publication has originated from a network service, its subscriber is deemed its publisher unless it could be proven otherwise.

Critics have argued that this would leave Internet users exposed to lawsuits where they would struggle to prove their innocence if their networks were used by a third party to post illegal content, including if their networks were hacked.

The law also presumes that if a publication appears under a person’s name, or if it had originated from his computer, then he is also deemed the publisher unless proven otherwise.

‘Withdraw the law’

The word ‘computer’ in this Act is defined broadly enough to also include smartphones and tablet devices.

The Evidence Act amendment has already been passed by both houses of parliament since May, but has yet to be gazetted into law.

Ooi hopes that the amendments would be withdrawn in similar fashion to the Election Offences Act, saying that it had came in conflict with the CMA and the Multimedia Supercorridor Bill of Guarantees, which among others, guarantees no Internet censorship.

However, de facto Law Minister Nazri Abdul Aziz had reportedly said the government has no intention of doing so.

“Without the Act, we will be at the mercy of unscrupulous people, and we won’t be able to charge anyone. We don’t intend to withdraw the Act,” he was quoted as saying in theSun on May 21.