Black Day for Malaysians : New Evidence Bill Takes effect today

Today marks a crucial point in the crusade against freedom on the internet in Malaysia. We’ve had SOPA in the US, ACTA in Europe and the TPP has brought the fight closer to our borders. Today in a brilliant tactical move by the enemy of Freedom,  Malaysians will be subjected to an amended evidence act that would shift the burden of proof from the accuser to the accused. It is a black day indeed, and the words John Fogerty ring in my ears–I see a bad moon rising.

Why the need to amend the act?

The Malaysian government would have you believe that there’s a huge amount of slanderous articles floating on the internet and these articles are hard to track down. The truth is they’re impossible to track down, provided the authors took the necessary steps, and rely on the good-will of companies like twitter and Google.

According to our de facto Law Minister “we don’t want [anonymous or pseudonymous] people to slander or threaten others” . I will later point out that the act does not in any way assist in the tracking of these slanderous people, but rather shifts the burden for investigating these incidences from our law enforcement officers to the average joe with an internet connection. Also, I’m no law expert, but I believe slander is for verbal statements, the word Nazri should have used was Libel. That’s the sort of Law Minister we have!

So the government claims it needs to act to address the anonymous and slanderous nature of the internet. That’s like saying we need an act to address the ‘wet’ nature of the Klang River. A river is supposed to be wet, just like the internet is supposed to be anonymous and free for all. It is the anonymity that grants the internet its extraordinary powers for the weak to speak against the strong. Just like how the ring in LOTR turns Frodo invisible, or the cloak in Harry Potter.

What does the act actually say?

So to lift off the act in it’s entirety:

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The new s. 114A(1) states that “A person whose name, photograph or pseudonym appears on any publication depicting 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 published or re-published the contents of the publication unless the contrary is proved

This is the main part of the law, but not the only part that seeks to limit internet freedom. In less fancy legal jargon, LoyarBurok (link below) makes a fantastic summary:

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“In simple words, if your name, photograph or pseudonym appears on any publication depicting yourself as the aforesaid persons, you are deemed to have published the content. So, for example, if someone creates a blog with your name, you are deemed to have published the articles there unless you prove otherwise. If you have a blog and someone posts a comment, you are deemed to have published it. If you have a Facebook page and an user posts something on your wall, you are deemed to have published it!”

further to section(1) though:

(2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published 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:-

(a) “network service” and “network service provider” have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998 [Act 588]; and

(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.”.

To summarize this in laymans terms, if someone used your wifi connection to publish something libelous or illegal–you’re screwed!

What do the amendments mean?

The main issue with the Bill is that the burden of proof has been shifted, so instead of saying innoncent till proven guilty, it’s guilty till proven innocent. Now the reason for this is because the government finds it ‘difficult’ to prosecute. To quote our ‘de facto’ Law Minister:

“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,”

So basically the government is saying this ” because WE can’t find who made these statements, we’ll leave it with YOU to prove your innocence” . If the bloody Government can’t find out who made those statements, how in the world do you expect an average joe internet user to find out? What the government is essentially saying is that, we don’t want to be at the mercy of unscrupulous people, so we’ll leave YOU at the mercy of unscrupulous people (middle finger fully extended).

But what does it really mean?

1. If someone post on my blog…I am responsible, even though the post was made anonymously and it was in the comments sections.

2. If someone post on my facebook wall…I am responsible, even though it was anonymous person I befriended yesterday because he claimed to be a Nigerian Prince with lots of money to invest in Malaysia. Seriously, he even had the link to a BBC article and everything.

3. If someone hacked my Unifi Wi-Fi (which isn’t hard to do)…I am responsible. Even though I live a condo next to a bunch of overzealous computer hackers who don’t have girlfriends, and nothing much to do in their free time.

4. If someone tweetjacks me…I am responsible. Even though I had no knowledge of the tweetjack.

5. If someone created a new website, keithrozario.org and posted articles that were defamatory to the Prime Minister…I am responsible, even though I had no knowledge of the website and the photos on the website that are of me were taken from Facebook!

Should I be worried?

Of course you should be worried.

Anyone can be held liable for statements they didn’t make, simply because the statements were made in their name or that statements were made via their network.

This contradicts other newly enacted laws, such as the one requiring all restaurants in KL to have Wi-FI. How in the world can a restaurant afford to offer wi-fi if it is held liable for all postings done via the wi-fi. Do you expect people to register for free wi-fi by giving their IC numbers? In which case you have the Personal Data Protection Act to worry about.

It’s very worrying that the government is trying to clamp down on internet users. It’s a round-about way of enacting censorship on the internet and something like this should not be passed into law without a fight.

Will it work?

The law will never meet it’s intended purpose (if we believe what the government is saying on its intended purpose).

A truly anonymous internet is not that hard to come by, consider this. I create a website on GoDaddy and pay for it with my paypal account. Then I use services like ProXPN, BolehVPN or even use my Cloud Machine on Amazon EC2. If I was really pedantic, I would logon to my Amazon EC2 instance via BolehVPN, and then use ProXPN from the EC2 instance to post onto my blog. It’s a mouthful, but a good analogy would be to get my 2nd cousins aunty, to tell her neighbour to tell you an anonymous message. There’s no way to trace the message to me unless you go through 3 different people.

So while the new blog has an IP address, there is no direct connection between my IP address and the blog, and to really determine the source of the statements, one would have to obtain IP records from 4 different companies (ProXPN, BolehVPN, Amazon and my local telco) to determine conclusively that I posted it online.

What if the blog were named, NajibRazak.org.

What if I posted really nasty stuff on the blog, like “Saya sebenarnya …sokong Lim Guan Eng“.

There’d be no way to trace the blog to me, but poor Najib would be deemed to own the blog and be made responsible for the post?

The act in no way would make it easier for enforcement of the law, or make it easier to trace the culprit. The government is merely washing its hands of the investigative working and shifting the work to the poor bloke, which in this case is Najib. More importantly, Najib is the victim, yet it’s up to him to defend himself, not the prosecution to prove that Najib indeed made the posting beyond reasonable doubt. Najib is pretty rich I guess, so he has access to lawyers and IT savvy tech geeks to help him out, but what about the average guy who just owns a small blog. I’m talking about average guys like myself, where are we to go to defend ourselves?

This is of course is if you believe that the intended purpose to prevent unwanted anonymous statements online.

The opposition in this country, feel that’s a quick and dirty way for selective persecution of bloggers, particularly those not aligned to the Malaysian Government.

What can I do?

Well, for under RM100 you could do exactly as I mentioned with NajibRazak.org , or you could make a list of people you don’t like and starting laughing in an evil grin.

Or you can voice your dissatisfaction with the law, by leaving a comment below, or signing a petition (also in the comments section).

What else can I do?

Take privacy seriously. Online Privacy has become a real concern these days. So we have a conundrum, while it’s pretty easy for companies to determine who you are, it’s also nearly impossible to trace you if you take the right steps to protect and safeguard your privacy.

Conclusion

The act is dangerous, and opens the door to superfluous legal charges on innocent tech illiterate folks, who just want to use blogger or facebook.

The internet was meant to be free and uncensored, it is irresponsible of our government to shift the burden of proof on the accused and to think that this in some way would solve the the issues we have with the freedom of speech accesible online.

In my honest opinion the real issue  isn’t the anonymity the internet offers but rather our governments discomfort towards providing people a free avenue for discourse, and the near childish way it hopes to deal with it.

Additional reading:
1. LoyarBurok: Grave repercussions for internet users
2. BFM Podcast: The Amended Evidence Act: More Caveats Needed to Prevent Abuse
3. The Sun: Amendment to Evidence Act stays, says Nazri
4. LoyarBurok: Bad Laws Won’t Stop Cyber Crime
5. Bar Council Website: Internet users cry foul over amendment to Evidence Act
6. Malaysian Mirror: Evidence Act Amendment Facilitates Selective Prosecution
7. CPI: Black day for internet users
8. The ACTUAL act itself from cljlaw