Section 114A of the Evidence Act 1950 reads as follows;
(1) 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.
(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.”.
The Centre for Independent Journalism claims that;
Applying to both civil and criminal cases in which allegedly illicit content is published on a webpage, Section 114A presumes that the following groups or individuals are guilty of publishing the content in question:
(1)Those who own, administrate, or edit websites open to public contributors, such as online forums or blogs;
(2)Those who provide webhosting or Internet services to the webpage in question; and
(3)Those who own the computer or mobile device on which the content in question was published.
And finally you will read tweets from the usual suspects, agreeing across party lines, that the law has to change, or at the very least a review of the law is argued to be in order.
While thousands of Malaysians wait anxiously for the other shoe to drop – as is always the case with bad news in the country that it sometimes seem to pile up – a few basic questions appear to have gone over the heads of almost everyone, myself included (self-incrimination for the sake of fairness).
Before we get ahead of ourselves, let’s not for one minute pretend that the Malaysian “web space” or “internet realm” or whatever the term is to describe the collective imagined spatial territory which constitutes Malaysia’s web usage is the bastion of intelligent discourse and a sort of noble fourth estate that needs to be revered with every written sentence – It’s not. It’s the internet, it doesn’t have to be, it’s okay if it’s otherwise and if anything, the World Wide Web is first and foremost the space for modern day anarchy where anything goes.
The truth is Malaysians use the internet most of the time to access services. The Alexa rankings will show you that at least 6 out of the top 20 most frequented sites in Malaysia consists of bidding and trading sites like Mudah, Cari, Lowyat.NET and the likes. Maybank2u and CIMBclicks also feature in within that lists taking up another two spots in the rankings, and finally to what can only be described as the surprise of the century, Facebook is the most frequented site in the country. Nowhere will you find the name of any well-known conglomerate news sites, not until number 56 at least where BBC News Online is ranked, and CNN interactive at number 156. This last piece of observation is of course in no way saying that local news companies are completely unreliable, some of them are great (I think you know which ones I’m talking about – although I’m quite surprised at how some of them ranked), but this snapshot is just meant to put a little perspective into our overall surfing habits.
In any case, the point is; let’s not pretend like we use our internet to rid the world of misinformation, one bad idea at a time.
But just because we don’t use our rights, or we don’t use it the right way (if such a concept even exists) it doesn’t mean we shouldn’t possess the said right altogether. If one were to miss, for whatever reason, voting day in this coming election (whenever that is) and missed the balloting process completely, it doesn’t mean that his or her right to vote should be revoked on the grounds that “he or she isn’t using it anyway”.
Similarly, say what you want about how Malaysians use their internet, but just because most prefer to drown in right wing conservatism or look up the latest on unadulterated local celebrity news, one shouldn’t mistake this as a sign of collective consent to intimately molest our common sense and the laws that protect our internet usage in the way it has been these past few days.
And yes, a lot of us are apathetic to high-brow, snooty, philosophical discussions on justice and equality – I personally reckon that there is nothing wrong with that (other than free loading on those willing to put their reputation on the line to protect your safety as an internet user of course). But even if we are apathetic, I am sure that the thought of knowing that a right exists and it is waiting to be seized is more comforting than the thought of having to argue for one where none exists.
Now back to the basic questions I was talking about earlier.
Well for one, how in the world did we get here? To wake up one morning and realise that we are now only that much closer to having to learn Newspeak isn’t exactly a good indication of how self-aware we all are with regards to what goes on around us. That a law was passed and it was incidentally one of the most freedom encroaching legislation of our generation and we hardly flinched an inch in April only to react retrospectively right now is beyond ludicrous.
Which begs the question of, how did this law passed through parliament? And even if there were opposition to it, why did it feel more like a whimper than a bang? Which office wrote or proposed this amendment? You would think that political careers can be made around opposing such an indefensible policy – Labour or Tory, Government or Opposition – regardless.
I am sure you might be correct in smugly saying that this isn’t the time to point fingers.
Well, to be honest, it is actually, and it should be pointed all around, myself included – this is our fault. How a whole country allowed its collective freedom to express get undercut so easily is a sure sign of carelessness. True, it might be other factors too, like dubiousness at the highest level of politics, or insensitivity and mis-prioritisation of issues to oppose by those sitting across the floor in Jalan Parlimen, being two equally plausible explanations to how we got here, but all of it shouldn’t detract from the fact that most of us didn’t know, didn’t care to know and subsequently just allowed for “it” to happen. This is a country that boasts having 14569 lawyers and enough civil society groups to make something out of something if they wanted to. We were careless, let’s face it, we were.
To make matters worse, the issue of 114A runs the risk of having a very short shelf life just like every other thing on the internet which quickly combusts into fad like a dangerous chemical reaction one day, then as quickly as it combusts – fizzles into nothingness, out of sight and out of the public mind.
The final Jenga piece is of course the comfort we conveniently find in hindsight. Review isn’t the same as not enacting a law. Returning what shouldn’t have been taken is not the same as not taking it in the first place. Accidental as it may have been, and to be completely fair accidents do happen, each and every one of us, regardless of socio-economic background or political leaning (notice I didn’t use the usual categorisation in Malaysia of race or religion) must be very careful in tip-toeing around the issues of fundamental freedoms – one wrong step and the date tomorrow will read 17/08/1984.
This my friends, has been the classic case of “you snooze, you lose”.
*This article can also be seen on the Aldwych Cable.