PROVE YOUR INNOCENCE ONLINE The new Section 114A of the Evidence Act 1950 (Malaysia)

by Raymond Mah

Email

Source:

MALAYSIA - Internet users as percentage of population: 61%

Source:

27%

Online destinations for Malaysians

29%

64%

73%

88%

93%

Section 114A of the Evidence Act 1950PRESUMPTION OF FACT IN PUBLICATION

Explanatory Statement

To facilitate the identification and proving of the identity of an anonymous person involved in publication through the internet.

Section 114A

(1) A person whose name, photograph or pseudonym appears on any publicationdepicting 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 publishedor re-published the contents of the publication unless the contrary is proved.

(2) A person who is registered with a network service provider as subscriber of a network service on which any publication originates from is presumed to be the person who published or republished the publication unless the contrary is proved.

(3) 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.

(4) For the purpose of this section-

(b) "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.

Nazri: “In the past, we have lost some cybercrime cases because of our inability to identify the IP addresses and owners of materials.”

Law Minister, Datuk Seri Nazri Aziz

Dr Shamrahayu Abdul Aziz, IIUM

Section 114A is merely “an assumption of fact” and the accused or the publisher can displace such an assumption by “other evidence that can disprove the offence by balance of probabilities”.

Presumption of innocence

Burden of proof on prosecution

Arulpragasan a/l Sandaraju v PP[1997] 1 MLJ 1

Federal Court: “the cardinal principle of criminal law that the general burden of proof on the prosecution never shifts”

guilt

accused

The Queen v David Edwin Oakes [1986] 1 S.C.R. 103

Supreme Court: “A provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence... The fact that the standard required on rebuttal is only a balance of probabilities does not render a reverse onus clause constitutional.”

Hacked!

Sony’s Playstation NetworkHacked in 201177 million users

Hacked in June 2012161 million users

Hijacked!

Twitter-jacked!

Impersonated!

“They will know that I will have to spend so much time, energy and expense to fight to prove my innocence in the courts that they will get away pretty much scot-free. Furthermore, while I’m trying to prove that I didn’t write these articles, they can continue to keep writing them with impunity.”

Marina Mahatir

Free Wi-Fi?

=

Free Wi-Fi?

Section 114A in practice

Attorney General’s ChambersPolice

(1) Rebuild your reputation (online and offline);

(2) Disproving the presumption under section 114A (the onus is now yours); and

(3) Catch the real culprit yourself (through civil law remedies).

Section 114A victim

The Star Newspaper9 November 2012

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133

Civil remedies

Stemlife Berhad v Bristo-Myers Squibb (M) Sdn Bhd

http://stemlie.wordperss.com :-

Nicola Brookes v

The Huffington Post 30 May 2012

“The UK’s High Court established a legal precedent recently when it ordered Facebook to reveal the identities of several online trolls.”

“The case is one of the first to mandate that Facebook turn over the identities of problem users “

Thank youTerima kasih

PROVE YOUR INNOCENCE ONLINE The new Section 114A of the Evidence Act 1950 (Malaysia)

by Raymond Mah