The ‘good things’ about Section 114A
By A. Asohan August 27, 2012
- The Stop 114A civil society movement has engendered insightful discussion on Internet freedom
- Govt now as a test case, while citizens are finding out that older laws have always applied to cyberspace
There are some good things that have come out of the Government’s fast-track, bulldozing ‘we know best’ method of enacting new legislation, such as the recent amendment to the Evidence Act 1950.
For one, it has shown that Malaysians of all stripes and political colours can unite in a common cause, which we saw on Aug 14 during ‘Internet Blackout Day.’
This ‘#Stop114A’ civil society initiative spearheaded by the Centre of Independent Journalism (CIJ) had a great number of websites and blogs posting a pop-up public message to express their concern about, and objection against, a new law that many agree would stifle free speech and put a damper on Malaysia’s aspirations to be a player in the global digital economy.
The protest against the Evidence (Amendment) (No2) Act 2012, or Section 114A, saw coverage in international media and is now an entry in Wikipedia, that community-generated online encyclopaedia.
It was also enough to finally get noticed by the Government, but evidently insufficient to get old-school politicians in Barisan Nasional to actually start including the rakyat in its deliberations. Apparently, in democracies like Malaysia, a general election is held only to decide who gets carte blanche for the next four to five years, and not about citizens’ right to self-determination.
The second good thing is that only after three weeks since the amendment was gazetted, the Government has a test case in which it can prove its sincerity, its argument that the law was not crafted to silence its critics, and that nobody is above the law.
A Facebook page which Umno Youth denies is authorised posted what can only described as seditious, untruthful, an incitement to hatred against Christians, bigoted and just plain stupid – though the last is not a crime in Malaysia and indeed, has led to many a promising political career.
The youth wing of the dominant party in the ruling coalition has filed a police report. In fact, this case seems custom-made to test the amendment: On Facebook, you have no real control over who posts comments, though you may delete it after the fact in some cases, and you certainly have no control over who posts what on your Wall.
Section 114A presumes you are the publisher in any case, and makes you liable for any action taken under our current defamation and sedition laws.
Umno Youth chief Khairy Jamaluddin, who actually has gone on record against Section 114A, certainly has his work cut out for him. At least, unlike private individuals and small companies, the Youth Wing has the financial resources and political clout to fight the authorities’ legal action against it.
Such action must come, or the Government risks making itself look incredibly inept and downright dishonest.
The third good thing is that since the amendment was first tabled (and heard of) on April 18 and rushed through to become a law of the land on July 31, discussions and forums have sprouted that not only brought to light many new areas of concern, but also illustrated many misconceptions about Section 114A and the nature of freedom of expression – whether online or in the physical world.
First, nobody can be charged under Section 114A – the amendment introduces a new presumption of fact. You will still need to be charged under other existing laws covering defamation, sedition and so on.
And yes, the defamation and sedition laws in this country already apply to the Internet – the amendment is only about what can be adduced as evidence and shifts the burden to the accused, whether in a criminal or civil case.
So the idea that you have to be careful about what you re-tweet on Twitter, for example, is not new. If you re-tweet something defamatory or seditious, or you post such on a blog or comment likewise on a news portal, you have always been open to legal action.
Section 114A does not change that, but it now widens the circle of liability to include anyone with a Facebook page or Twitter account, anyone who provides Internet access facilities, anyone who shares his or her Wi-Fi network – whether with customers or family members.
With this amendment, you’re not only open to but also presumed guilty for anything anybody posts using your name or picture – but you have always been open to legal action for anything you yourself post online, even without Section 114A.
If there’s one thing I agree with though, it’s the need for more responsible discourse and accountability on the Internet – but I also have to add that the most odious and reprehensible examples I can think of when it comes to irresponsible use both involve pro-Umno bloggers.
There was of course former Selangor Mentri Besar Khir Toyo’s fabrication against Seputeh Member of Parliament Teresa Kok in 2008 that not only got her incarcerated under the Internal Security Act, but also incited Muslim hatred against her.
There were the bloggers who attacked the school-going son of Penang Chief Minister Lim Guan Eng, right down to posting a picture of a 16-year-old girl from Hong Kong who had never visited Penang and whom they lied about Lim Junior molesting – I mean really, attacks on schoolchildren? Is nothing beneath you guys?
A government that is sincere about responsible online use and which claims it is against fabrication and lies would not only have censured these bloggers, but have taken action against them.
Many years ago when I was working for The Star, I wrote something that I think applies even more so today: The Internet is an empowering technology. It has given so many people a voice and a platform they never had before.
But, as I paraphrased then, with great empowerment comes great responsibility.
* This article appeared previously in The Malaysian Insider.
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