The tale of two laws: Section 114A and the PDPA
By Gabey Goh October 3, 2012
- The passing of two laws, the PDPA and Section 114A, reveals much about the nation’s priorities
- Some trust must be had in the online community’s ability to discern facts from lies
IF there was an award for most demoralizing story, it would automatically go to the tale of two laws – The Personal Data Protection Act (PDPA) and the Section 114A amendment to the Evidence Act 1950.
I am no expert on legislation or Malaysia’s legal paradigms, but one doesn’t have to be, to be concerned about where priorities lie when the tale of these two laws are laid out side by side.
So let’s break it down:
Section 114A amendment to the Evidence Act 1950
What does it do?
Section 114A is the second of two amendments made to Malaysia’s Evidence Act 1950. It deals with allegedly illicit or harmful content on the Internet. In short, the amendment enables law enforcement officials to swiftly hold someone accountable for publishing seditious, defamatory, or libelous content online. Under Section 114A, titled “Presumption of Fact in Publication”, you are considered guilty until proven innocent.
How long did it take?
De facto Law Minister Nazri Aziz tabled the second amendment, formally known as Evidence (Amendment) (No 2) Act 2012, in the Dewan Rakyat on April 18. James Dawos Mamit supported the motion, and Section 114A was passed after the second and third reading. On May 9, Dewan Negara passed the amendment. The amendment was gazetted on July 31, 2012.
The entire process took four months. A criminal case, which would tap Section 114a for evidence collection, has yet to be filed in court.
Personal Data Protection Act 2010 (PDPA)
What does it do?
The PDPA is aimed at regulating the processing of the personal data of an individual who is involved in commercial transactions, by the data user, to provide protection to the individual's personal data and thereby protect the interest of the individual concerned.
How long did it take?
The PDPA was passed by Parliament in May 2010. The PDPA was gazetted into law in June 2010 and was scheduled to be in force by June 2012 to allow time for the Ministry of Information, Communications and Culture to set up a new Personal Data Protection Department, train staff, and select a commissioner to oversee the PDPA’s enforcement.
The entire process took a few months, but over the two years after it became law, the PDPA has yet to be enforced. Note that a law to protect personal data was amongst the original raft of 'cyberlaws' first envisioned by the Malaysian Government when it launched the Multimedia Super Corridor project in the late 1990s -- more than a decade ago.
Individual rights, government wrongs
So, with Section 114A, essentially Malaysia now has a law which makes it easier for criminal charges to be laid against those "deemed responsible” for seditious, defamatory or libelous content online.
But it is a worrisome piece of legislation which is now in effect despite repeated objections and concerns of the online community and civil advocates, who have said it would have a chilling effect on freedom of expression.
It is now a very visible and silent landmine hovering over the heads of online publishers, businesses and Internet service providers, waiting for its first victim.
And with the PDPA, Malaysia also has a law which makes it easier for individuals to protect their online identity and data, offering an avenue of recourse against companies for any undue invasion of privacy.
In layman’s terms, that means that with the enforcement of this act, companies -- on pain of criminal penalties -- are not allowed to do things like sell databases containing customer contact details off to the highest bidder.
Remember the last time you got bugged by some telemarketer who knew a couple of uncomfortable personal details, asking you to buy something? With the PDPA, you as a private citizen can do something about it.
But it has yet to be enforced, despite lawyers and even the National Consumer Complaints Centre (NCCC) urging for speed and many companies remain unprepared to comply.
It is no secret that Digital News Asia (DNA) is opposed to Section 114a, for many reasons already highlighted by my colleagues A. Asohan and Edwin Yapp.
All mature societies boast established cultural norms and protocols of behavior, along with an informed majority who would actively call out any outliers seeking to make mischief in the name of slander and sedition. The same rules apply online as well.
Malaysia is not yet a mature society, especially when you look at the collective that makes up our corner of cyberspace. But we’re getting there, albeit painfully and slowly with incomprehensible cyber-speak marking the path.
To address legitimate cyber security concerns, as expressed by the Government, I’m with Ganesh Kumar Bangah, group CEO of MOL Global, on this. In an interview with DNA, he stressed that issues such as tracking who is responsible for putting up malicious, defamatory and seditious comments in cyberspace is essentially a technological issue, and as such, should be addressed in a technical way.
But when it comes to the protection and safeguarding of my personal data as collected by companies I have engaged with for a specific service or product – heck yes, bring on the legislation!
I in no way believe that any corporate entity would keep my data to themselves and not cave in when faced with potential mountains of quick cash. Nor am I convinced that it won’t go and do weird, crazy or possibly illegal things with said data in the name of business opportunity.
(Yes Google, I know you’re looking at me but I’m not talking about you today.)
It says it all when asked why the offences for non-compliance were not civil like in other countries, Professor Abu Bakar Munir, a lawyer who was involved in the PDPA’s development said that for the act to be able to be enforced effectively, taking into account the track record of the country, the penalties had to be criminal.
“In this part of the world, without criminal penalties, it will be difficult to enforce the PDPA but even then there is no guarantee. We have some of the harshest drug laws in the world but it is still not a complete deterrent,” he said.
For where we are today as a nation, wishing to enable easier prosecution of slanderous comments should really be much lower on our list. There are bigger fish to fry, truly.
How about focusing on getting the rest of the country access to affordable high-speed broadband, at a much faster rate? How about focusing on educational outreach efforts to introduce newcomers and our children to digital do’s and don’ts? How about putting some trust in your maturing online citizenry to know the difference between facts and lies?
In the latest Freedom on the Net 2012: A Global Assessment of Internet and Digital Media report, Malaysia’s state of Internet freedom was assessed as “partly free” and had slipped two notches.
Interestingly enough, while we improved for “Violations of User's Rights”, we dropped for “Obstacles to Access” and “Limits on Content.”
With 100 being the worst, Malaysia’s 2011 score was 41/100 and the 2012 score is 43/100. Indonesia (42) outdid us by one point, while China is Asia’s worst Net freedom offender with a score of 85.
So let me ask you dear reader, which law would you have rushed through?
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