Shifting the burden of proof in Malaysia

Critics say revision to the Evidence Act is part of a bid by the state to control online discourse ahead of elections.

Mohamed Sharil Tarmizi, the chair of the Malaysian Communications and Multimedia Commission, the government body that regulates communication networks, says: "People assume that you can do things on the internet without accountability. That cannot be. No-one thinks about the victims. Many [are] subject to slander, libel, cyber persecution, cyber-bullying [and] harassment, and it's very difficult for law enforcement to ignore that part of society."

Claudia Theopjilus. Aljazeera

The Latin maxim 'semper necessitas probandi incumbit ei qui agit' essentially means 'he who asserts must prove'. This has been the accepted legal burden of proof in justice systems around the world for centuries.

But just last week, the Malaysian government pushed through parliament a revision to the country's Evidence Act that would effectively shift the burden of proof on to the accused.

The Act outlines the evidential rules that apply in all forms of civil and criminal cases. But it is in the cyber world that the amendment is most likely to have the greatest impact.

The purported aim of the revision is to prevent internet crimes and scams by placing the onus on the owner of a computer to which a seditious posting is traced or a website on which a seditious posting has been published to prove that they are not responsible for it.

The state argued that tracking down those responsible and bringing them to book had been near impossible due to the common use of pseudonyms and fake identities online.

Mohamed Sharil Tarmizi, the chair of the Malaysian Communications and Multimedia Commission, the government body that regulates communication networks, says: "People assume that you can do things on the internet without accountability. That cannot be.

"No-one thinks about the victims. Many [are] subject to slander, libel, cyber persecution, cyber-bullying [and] harassment, and it's very difficult for law enforcement to ignore that part of society."

He says many people assume the internet operates in a legal vacuum. "The law of the land applies online and off line. If you're not going to slander someone to his face, why should you do it in a tweet? If you do it in a tweet then you should be liable. How do you then prove it is he who tweeted? Now the presumption says if the account is yours and it's your name then it's you. It's about burden of proof not presumption of guilt."

But the move has sparked a public outcry among Malaysian internet users, including civil society groups, bloggers, activists and lawyers, who fear the potential for abuse by law enforcers and prosecutors.

An online petition has demanded the revocation of the amendment, which comes into effect on June 1, and which critics say was rushed through the Malaysian parliament without proper debate. Among the points of objection raised in the petition is that: "It allows hackers and cyber criminals to be free by making the person whose account/computer is hacked liable for any content/data which might have changed."

Curbing political dissent?

Many opponents accuse the government of trying to curb political dissent by striking fear into netizens who actively engage in political discourse - claims denied by Nazri Abdul Aziz, Malaysia's de facto law minister.

"Under the amended Act, we shift the burden to the owner of the laptop or account so that we can get to the source [of the slanderous or seditious comments]," Nazri was quoted as saying in the Malaysian media.

Syahredzan Johan, the chairperson of the Malaysian Bar's constitutional law committee, says the revision to the Evidence Act has created three new presumptions: 1) If there is a publication and the person has a name, photograph or pseudonym depicting her/him as the owner, host, administrator, editor or sub-editor or in any manner facilitates the publishing of the publication then that person is presumed to have published the publication 2) A person who is registered with a network service provider as a subscriber of a network service from which any publication originates is presumed to be the person who published or re-published the publication 3) Any person who has in her/his custody or control any computer from which any publication originates is presumed to have published or re-published the content of the publication

That statement has prompted the Malaysian Bar to express deep reservations.

Syahredzan Johan, the chairperson of the Bar's constitutional law committee, says the revised law has created three new presumptions, effectively reversing the burden of proof, particularly in criminal cases.

"All these presumptions do not make a person automatically guilty. What it does is make the task of proving guilt much easier than previously," Syahredzan explains, adding: "The government says it is difficult to prosecute offenders. This is not good enough a reason. You do not change the rules simply because you have difficulty achieving success. Do you change the rules of a football game simply because you cannot score a goal?"

Syahredzan, who says there are many ways to hack into someone's computer or piggyback on someone's wi-fi network, insists the move will not deter cyber criminals.

"If someone piggybacks on, say, John Smith's account, will he remember what he was doing at the time of the alleged posting, and even if he does remember will he then be able to corroborate his story? Whatever mischief this amendment is supposed to remedy is offset by the far greater mischief that has resulted from it."

Internet censorship

Malaysia has no known filtering technology to actively censor internet content or laws aimed at limiting or censoring the internet. In fact a provision of the Communication and Multimedia Act (1998) explicitly states that nothing in the act "shall be construed as permitting the censorship of the internet". The Bill of Guarantees of the Multimedia Super Corridor, an information-technology development project, also promises no censorship of the internet. But authorities have been known to take other measures, such as removing content, to restrict the circulation of certain information.

Malaysia has a population of 29 million, with an internet penetration rate of 56 per cent. Existing legislation already covers defamation and sedition, and the country has a slew of preventive detention laws.

Besides the legal ramifications, the revised Evidence Act has had a chilling effect on individuals, corporations and civil society.

Ong Kian Ming, a political analyst and lecturer based in Malaysia, says he does not see how shifting the burden of proof through a blanket approach can reduce cybercrimes, when the more effective tactic would be to target the sources of those crimes.

"This will create a climate of fear where people will become scared to post anything, or to allow others to post anything on their Facebook pages [or] blog sites. The more paranoid ones may even prevent their guests from using their wireless network."

Ong thinks the impending general elections may be the reason for the amendment, with the real purpose being to try to reduce anonymous online attacks and postings against the ruling coalition and political leaders.

"My concern is more about the online environment because it has been relatively free from government interference until now. I think that the ruling coalition is fearful of the potential of social media to generate anti-incumbent feelings, as evidenced by the largely sympathetic outpouring of support for the protesters after Bersih 3.0," says Ong.

Bersih 3.0, a movement calling for reform of the Malaysian electoral system, organised a massive street protest on April 28 that resulted in a security crackdown.

Ong added: "It would not be that surprising if the amendment to the Evidence Act was electively used to target anti-government voices, both online and offline."

Finding a political voice

In recent years Malaysians have increasingly engaged in open, and often very critical, online political discussions. More citizens are now blogging and exchanging critical views on social networking, video-sharing and micro-blogging sites - something some consider an inevitable outcome of the state's direct and pervasive control of print and broadcast media.

In the 2008 general elections the ruling Barisan Nasional (BN) coalition suffered a historic loss of its two-third parliamentary majority, while the opposition made huge gains in a number of key constituencies.

The Freedom House, a US-based organisation that monitors and analyses freedom and democratic change around the world, noted this increase in online engagement in the run-up to the 2008 polls.

Its Freedom on the Net 2011 report stated that the BN-led government had "recognised the potential political impact of the internet and had therefore grown more determined to control it", citing cases where bloggers were harassed and taken to court on vague charges.

"Together with the growing popularity and importance of independent online news outlets, the use of the internet for political mobilisation was widely perceived as contributing to the opposition's electoral gains."

A disturbing trend

Gayathry Venkiteswaran, the executive director of the Southeast Asian Press Alliance based in Bangkok, says the regional trend of introducing new restrictions to further regulate content, content providers and intermediaries is deeply disturbing.

She says the amendment in Malaysia comes on the heels of a landmark case in Thailand where an intermediary was found guilty of hosting comments perceived as insulting to the royal family on her website and in a region where governments have responded positively to a proposed move by Twitter to agree to remove content if required by a country's laws.

"Governments from this region talk to each other and I am afraid that each will find the controls imposed attractive in trying to control political expression in their respective countries. As it is, free speech comes under attack from many fronts - either through laws directly regulating the media or preventive detention laws on grounds of national security ... this just introduces another tool to instill fear in internet users."

Gayathry thinks the law may stop people having chat or forum sections on their blogs or websites, essentially taking away space for expression. "It effectively allows the government to cast a wider net over those who are critical of it and use online spaces to express their discontent or opinions."

"In general, civil and political liberties have been under threat in Malaysia. The revised rule will not deter cyber criminals because of the nature of the internet infrastructure and users, which makes it impossible to track every person/user or to know for sure who created the content," says Gayathry.

"Basically, what they are hoping to curb is free speech or slander in particular, which is already provided for in defamation laws, both criminal and civil. If they are talking about 'real' cybercrimes, I think this amendment does very little to tackle the problem."

Julian Vincent, the chairperson of the Internet Society Malaysia Chapter (ISOC Malaysia), says the potential for the revised law to be abused by investigators is a serious concern.

"We are concerned that it will put an innocent party whose name or picture is misused by a third party at serious risk of wrongful prosecution and injustice. Furthermore, placing burdensome roles on innocent intermediaries may, as an unintended consequence, have a negative impact on innovation, service delivery and, ultimately, future investment and economic growth."

Vincent hopes the Malaysian cabinet will revise the current text and work to address privacy considerations and protect citizens' rights and civil liberties in any future cyber security legislation.

"In the internet environment where the websites of even the largest organisations are susceptible to hacking and manipulation, it is dangerous to have this presumption in place," he says, adding: "He who asserts must prove!"