The introduction of Section 114A receives many
controversies and criticisms. When the issue surfaced a couple of weeks ago,
and swiftly became a public debate, my immediate reaction was that, why the
opposition parties were silent during the parliamentary sittings or any time
before it came into force, but rather awaiting the campaign, Internet Blackout
Day, on the 14th day of August 2102 led by Centre
for Independent Journalism (CIJ) ?
Almost all criticisms focus on public law, i.e.
Section 114A could provide a foundation to legal enforcers and prosecutors to
abuse their powers and thus becoming a means for ruling party bullying supports
of opposition parties. While we cannot deny such potential side-effect in the
course of regulating cyber-wrongdoings in public law, we should equally look
into the good points in private law.
For example, defamation could be either a criminal
or civil wrongdoing, but unless the victim of defamation is a well known public
figure, it is utmost unlikely that police and/or law enforcer from relevant
government agencies will seriously exercise their power to further investigate
into the complaint be lodged by way of precisely looking into the possibility
of instituting criminal defamation proceedings. Hence, the residuary avenue
that the victim could take is civil defamation proceedings.
Without intervene of police and/or law enforcer in a
defamatory wrongdoing investigation convicted in cyberspace, the evidence to be
adduced before a court in civil litigation could be even harder than in
criminal litigation. Such difficulty lies in procedural requirements in
evidence law. With Section 114A comes into force, the plaintiff (victim) may
only be required to establish prima facie
evidence instead of adducing full evidence, particularly in procedural
compliances and regulations.
Approximately five years ago, I attempted to provide
computer forensics service to industry. The underlying objective of this
service is to assist disputing parties to discover the truth of
computer-related wrongdoings. I discussed this plan with research faculties
from School of Computer Science of USM, and Faculty of Law of MMU. It was
concluded that, despite the truth could be revealed in substantive way on the
conditional requirements that the hardware could be provided, the truth of
findings could be easily rebutted from procedural perspective in the absence of
procedural framework that regulating the operational works of computer
forensics. Just like language-translated evidence submitted before a court must
be done by a certified translator recognized by a court, in America, the person
who carries out computer forensics evidence must be certified and recognized by
court in order he understands and practices respective procedural compliance
before the admissibility of such evidence.
Section 114A exhibits certain ingredients of
occupier liability. Traditionally, tort of occupier liability is applied to
physical premises and land. In cyberspace, many account owners of social media
perceive this dedicated cyberspace as their cyber-home. They have rights to
determine who is welcome and who is not. They also can determine the contents
in their cyber-home as to whether to keep or remove. Hence, the advent of ICT should naturally
extend the meaning of tort of occupier liability from physical premises and
land to cyber-home. Having said this, the primary difference between the two should
be that, the occupier of cyber-home owes a duty of performing house-keeping of
his cyberspace if any content deemed to be defamatory and/or seditious within a
reasonable time horizon, but the owner of physical premises and land cannot
perform post-event rectification. The principle of tort of occupier liability
should therefore evolve in accordance with the advent of ICT and its
implication to socioeconomic changes.
Nonetheless that, holding an account registration
person for Internet access liable on the principle of reverse evidence is
apparently ridiculous and gravely wrong. If such a liability stand, then Internet
service providers or licensees under Communications and Multimedia Act, such as
Telekom Malaysia which provides Streamyx and Unifi, should equally be held
liable as part of wrongdoing chain echelon. Indeed, they have to prove
themselves innocent prior to an Internet account registration person proves
himself innocent.
In summary, the introduction of Section 114A of
Evidence Act should be seen as an endeavour to combat cyber-wrongdoings which
serves as procedural law to complement inadequacy of respective substantive
laws. Neither should it be short-sightedly perceived as with bad and hidden
agenda for political purpose, nor be it a means to restrain fundamental liberty
of speech freedom. While the advent and development of ICT is characterized by
fast-moving, the development of legal principles must not be left too far
behind towards socioeconomic demands in a balancing mechanism. The gap between
the two domains will surely be enlarged and deepened if our legal professionals
fail to exhibit strong technopreneur spirits to confront ever-changing
environment as what described by Professor Susskind in his popular book, “The
End of Lawyers?”. Notwithstanding, however that, I echo the suggestion of
Malaysian Bar to call upon setting-up a taskforce comprising civil society,
industry players and technology experts to revisit concerns and issues
surrounding the controversial Section 114A.
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