The Effect of Section 114A of the Evidence Act 1950 on Internet Publications
by Pauline Lim Wenjun ~ 16 April 2019
Introduction
In today’s generation, the use of social media is omnipresent. It has become commonplace to post one’s views or share content on social media, without any thought on the repercussions of the same. In this regard, it is important for the public to be aware of legislation pertaining to social media publication to ensure people are using social media responsibly.
Presumption of Publication
The law provides for a presumption of fact of publication for all publications, including those made via social media. This presumption of fact is found in Section 114A of the Evidence Act 1950 and reads as follows:
“Section 114A: Presumption of fact in publication
(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.”
Put simply, Section 114A of the Evidence Act 1950 gives rise to a presumption that any internet posting, whether by way of an original post or reposting, done by someone using a person’s name, photograph or pseudonym as an author/reposter, is presumed to have been published by the true owner of said name, photograph or pseudonym. This means that someone using a name and/or photograph of another can cause the true ‘hacked’ owner to be liable for any content published.
This presumption of fact also extends to subscribers of network services and any person who has custody or control of a computer and/or website on which any publication originates, or is presumed to have been published from. Therefore, this would mean that if a social media posting is tracked to a particular IP address or computer registered under any individual or entity, said individual or entity will be presumed to be the publisher of the statement in question, unless they are able to prove otherwise. Further, subscribers of wifi networks, ranging from owners of establishments to home internet owners, may also be presumed to have personally published content published by users of their network services.
In this regard, it is worth noting that pursuant to Section 114A(4)(b) of the Evidence Act 1950,‘publications’ done online range from statements and representations, to pictures, videos and audio clips displayed on the screen on a computer.
Should an individual author/ reposter in question seek to rebut this presumption, s/he would have to prove that the post was not published/re-published by them – e.g. their account was being used by a third party, ‘hacked’, or that the social media account in question does not belong to them. For network service providers, as well as owners of websites and/or computers, there may arise an added burden to prove that they do not have editorial control over content posted using their service(s), computers and/or websites, as seen below.
Someone using a name and/or photograph of another can cause the true ‘hacked’ owner to be liable for any content published.
Implications Arising From Such a Presumption
In light of the presumption of publication under Section 114A, the category of potential defendants for cases involving social media posts is extremely broad. The same ranges from mere service providers and facilitators of online community forums or blogs,[1] to a lay person sharing any form of content on social media. This means that any member of the public can be sued for reposts and/or content generated by others who are able to access their email, Facebook account, wifi network, computer. In addition, website providers can be liable for posts by others on a community online forum that they manage.
The impact of this is far-reaching. In cases of publicly and/or business provided services, it is difficult to identify which posts and/or content are shared by each individual user. Situations involving home networks/ computers would also place an undue burden on the owner of said network and/or computer to monitor each byte of data exported. Beyond the confines of time and resources, it is doubtful that such a meticulous log is even possible – and if so the availability of such a system to a regular member of the public/ service provider is questionable.
In addition, the presumption of fact of publication in effect reverses the burden of proof of publication from the plaintiff in proving its case, to the defendants in all actions involving social media postings.[2] Individuals are now required to be doubly certain of content originating under their name, social media accounts, and/or containing their picture(s). Operators of websites, service providers and businesses with online platforms are also now faced with the responsibility of actively monitoring the comments and/or content being posted on their websites.
As an example, in Thong King Chai v. Ho Khar Fun [2018] 1 LNS 374, the Defendant in question was presumed to have published an email issued by an email address in his name under the presumption in Section 114A. The Defendant was also presumed to have published a Facebook post made using his Facebook account. To rebut these presumptions of publication, the Defendant was required to produce evidence to disprove that he had in fact published the email and Facebook posting, which was not done.
Similarly, an example of a suit concerning a non-direct publisher of an online posting is Stem Life Berhad v Mead Johnson Nutrition (Malaysia) Sdn Bhd & Anor [2013] MLJU 1582, where the High Court held that an owner of a website was unable to rebut the presumption of publication of impugned statements made by users of its website.
The High Court held that the website owner’s decision to exercise ‘no control’ over the postings opened it to liability in defamation, as by having editorial control over the comments of a website (e.g. the power to remove content and suspend users), the owner’s role is akin to that of a newspaper editor. This is notwithstanding that the forum users of the website were “generally adverse to monitoring and to censorship”.[3] In its judgment, the High Court also emphasized that the introduction of Section 114A was to ensure users did not exploit the anonymity provided by the internet to escape the consequences of their actions.[4]
There are numerous implications to such a legal presumption of fact. As an example, what then of providers of free wifi services? Pursuant to Section 114A, such providers would be responsible for any publications made using their free wifi service. It is nigh impossible for service providers to determine which user was the publisher of a particular comment and/or post under a free wifi service – what more if users are not required to sign up/ register for such services to begin with.[5] Can wifi service providers then fall back to the decision in Stem Life above, and argue that the degree of control exercisable in different circumstances factors into the operation of a Section 114A presumption?
Indeed, Mariette Peters in her article “Section 114A… A Presumption of Guilt?”,[6]outlined the concerns surround the Section 114A presumption, as follows:-
“…Several quarters have expressed their reservations on s.114A because the perception is that the section tends to impose the burden on a person to prove his innocence as opposed to the prosecution to prove his guilt. Considering the rampancy of cybercrime, the concern is that reversing the burden in this manner may perpetuate more crimes.”
Safeguards in Place
To address such concerns, the purpose behind the introduction of the legal presumption provided in Section 114A is instructive.
The Hansard to the Evidence (Amendment) (No. 2) Bill 2012 shows that the amendment to the Evidence Act 1950 in the form of Section 114A was introduced to balance the demands of confidentiality with that of public interest in combatting the increase in cyber-crime in Malaysia. Legislators were also concerned with the issue of anonymity in dealing with perpetrators of cyber-crime in Malaysia.
It appears that the widening of the category of defendants via Section 114A was to enable potential plaintiffs to obtain better assistance from key players in an internet publication (e.g. service providers) in locating the actual authors of any impugned statements. In addition, the presumption as found in Section 114A was expected to encourage service providers to be more diligent with the recording of the users of their service.
However, the legislature had recognized that there was a need for an efficient system to track down and locate actual authors of any offensive internet publication. Such a system is required to prevent abuse of the presumption of fact contained in Section 114A. Therefore, the legislature had also emphasized that the application of the Section 114A presumption would be done on a case-by-case basis. As such, the presumption was not intended to be treated as an automatic presumption, but was intended to only be applied when a plaintiff has proven the factum of publication, and if the Court in question is of the opinion that the presumption should be invoked.
Viewed in this context, it is arguable that the presumption should not result in the injustice envisioned above. Based on the intention of the legislature as per the Hansard above, the Courts are supposed to weigh the public benefit of combating cyber-crime against the undue burden placed on different category of defendants in determining if the presumption applies in each different case.
To-date, there have been few cases which have discussed Section 114A, and fewer still have discussed the application of the same against service providers and/or remote computer owners. Given the scant case law on the subject, the true effect of the presumption contained in Section 114A has yet to be fully determined. It is hoped that in applying this presumption, the Courts remain cognizant of the underlying intention of the legislature– namely intending the presumption to function as an aid to potential plaintiffs/ prosecutors in cyber-crime situations to determine the true author of any impugned statement published online.