The Presumption of Publication

by Malik Imtiaz Sarwar

The recent amendment to the Evidence Act 1950 to introduce Section 114A has not been without controversy. The Centre for Independent Journalism (CJI) launched an online petition against that the section last month.

Its basis is the concern that by virtue of the section presuming publication, and thus responsibility for publication, on the part of Internet intermediaries and by impeding anonymous expression of thought, free expression on the Internet would be undermined. This has particular resonance for Malaysia in the light of the way in which the media is regulated.

Though at first glance the argument advanced by the CIJ and other like minded organisations and individual is attractive for its championing of free expression,the subject behooves deeper consideration.

Let me state several obvious features of the matter. The media is highly regulated in Malaysia, to an extent that the so-called mainstream media (MSM) is no lnger of great relevance to a significant number of Malaysians. As a consequence, Malaysians seek information and opinions online from news sites, blogs and the social media.

Needless to say, in this unregulated sphere, expression is robust, unguarded and perhaps in some cases truer. The value of social media to disseminate opinion and information is undoubted and in the light of how things are in Malaysia, it has become a primary means to influence opinions. Regrettably though, it has also resulted in a plethora of anonymous blogs and Twitter timelines that routinely publish highly offensive and defamatory content.

Over the years, we have seen bloggers and twitter users taken to court for defamation. In the course of my dealings as a lawyer, I have had occasions to represent some litigants in such cases. The misconception of many social media users is that by virtue of the government’s assurance that the Internet will not be censored, people are free to write what they wish without being held accountable.

This puts into focus the first of several key features of discussion. Throughout the common law jurisdictions, persons who publish defamatory material can be held liable for their having done so. Publishing on the Internet is no different from publishing elsewhere in this regard and the same responsibility rests on the author and the publisher (if they are different persons) of the offending publication.

The question is, is one entitled to take advantage of technology to publish anonymously and avoid liability? From a strictly legal perspective, I do not see why this should be the case. By this I mean that if there were means to ascertain the identity of an anonymous blogger, then he could be made liable.

A second feature then becomes apparent. It centers on the question of whether legislature is permitted to enact presumptions of fact. The short answer is that such presumptions are not as a matter of course repugnant to the law. The statute books are replete with such presumptions. They are in themselves not unconstitutional. The operative presumption here does not in itself undermine the right of expression.

So, why is there a need for a presumption of publication when the authorities–the Malaysian Communications and Multimedia Commission, for instance–have the power to determine the identity of anonymous bloggers and so on?

Private litigants do not have access to the power and resources of the state and for that reason are too often at a disadvantage. For instance, over the years we have seen how public figures have been made the subject of vicious smear campaigns and how these persons have been powerless to deal with such vile attacks.

Seen in this light, the practical benefit of a section in the Evidence Act, which sets up a presumption of publication, cannot be denied. It should not be overlooked that presumptions can be rebutted. The CIJ is concerned that hacking may lead to the wrong persons being found culpable. From a strictly legal perspective, if hacking can be established, then one would have an obvious defence.

If I have a reservation, then it is the ambit of the provision, then it is the ambit of the provision. At a recent CIJ forum on the subject, Jeff Sandhu, one of the panelists, expressed concern that the section may include within its ambit persons who provide free WiFi, as Dewan Bandaraya Kuala Lumpur (DBKL) now requires. He may have a point. The breadth of the section is cause for concern not only for the fact that it may lead to innocent persons being found to be liable, but also for the practical impact it will have on commerce and trade, in particular–as another panelist A Asohan pointed out at the forum–the thriving Internet business.

The government may wish to reconsider the scope of the section by reference to the declared intention underlying the section. It is possible that while the aim of the section is not unconstitutional, the breadth of the provision may lead to it being so.

In fairness, it appears that it is the ambiguity of the underlying intention that is fueling many of the concerns. The sociopolitical considerations are vastly different from the strictly legal ones I have attempted to highlight. The fact remains that a good many Malaysians do not have much faith in the “system” and think of the institutions of the state as having been politicised.

The social media has become the principal means of spearheading meaningful reform as it has been in many parts of the world. Understandably, civil society is concerned that there may be a collateral purpose to the amendment, one aimed at stifling a burgeoning awareness of rights discourse.

Frankly, it is a concern that cannot be dismissed outright, having regard to the state of things in the country. The last thing that Malaysia needs right now is the stifling of political consciousness.

*Malik Imtiaz Sarvar is a practising lawyer and the President of the National Human Rights Society (HAKAM)–The Edge Malaysia, June 18, 2012