The presumption of publication

The misperception that many social media users have is that by virtue of the Government’s assurance that the internet would not be censored, people are free to write what they wish without being held to account for the same.

 

The recent amendment to the Evidence Act 1950 to introduce section 114A has not been without controversy. The Center for Independent Journalism launched an online petition against the section last month. Its basis is the concern that by virtue of the section presuming publication, and as such responsibility for publications, on the part of internet intermediaries and by impeding anonymous expression of thought, free expression on the internet would be undermined. This has particular resonance for Malaysia in light of the way in which the media is regulated.

 

Though at first glance the argument advanced by CIJ, and other likeminded organisations and individuals is attractive for its championing of free expression, the subject behooves deeper consideration.

Let me state several obvious features of the matter. The media is highly regulated in Malaysia, to an extent that the so-called mainstream media (MSM) is no longer of great relevance to a significant number of Malaysians. As a consequence, Malaysians seek information and opinions on-line from on-line news sites, blogs and the social media. Needless to say in this unregulated sphere expression is robust, unguarded and perhaps in some cases truer. The value of social media to disseminate opinion and information is undoubted and, in light of how things are in Malaysia, it has become a primary means to influencing opinions. Regrettably though it has also resulted in a plethora of anonymous blogs and twitter timelines that routinely publish highly offensive and defamatory content.

Over the years we have seen bloggers and twitter users taken to court for defamation. In the course of my dealings as a lawyer I have had occasion to represent some litigants in such cases. The misperception that many social media users have is that by virtue of the Government’s assurance that the internet would not be censored, people are free to write what they wish without being held to account for the same.

This puts into focus the first of several key features of discussion. Throughout the common law jurisdictions persons who publish defamatory material can be held liable for their having done so. Publishing on the internet is no different from publishing elsewhere in this regard and the same responsibility rests on the author and publisher (if they are different persons) of the offending publication.

The question therefore arises as to whether a person should be entitled to take advantage of technology to publish anonymously and avoid liability. From a strictly legal perspective, I do not see why this should be the case. By this I mean that if there were means to discover who it was that a particular anonymous blogger, and their identity could be ascertained, then that particular person could be made liable.

A second feature then becomes apparent. It centres on the question of whether legislature is permitted to enact presumptions of fact. The short answer is that such presumptions are not as a matter of course repugnant to the law. The statute books are replete with such presumptions. They are in themselves not unconstitutional. The operative presumption here does not in itself undermine the right to expression.

A question may arise as to why it is there is a need for a presumption of publication in light of there being powers in the hands of the authorities, the Multimedia Commission for instance, to determine the identity of anonymous bloggers and so forth. Private litigants do not have access to the powers and resources of the State and for that reason are too often at a disadvantage. For instance, over the years we have seen how public figures have been made the subject of vicious smear campaigns, and how these persons have been powerless to deal with these vile attacks. Seen in this light, the practical benefit of a section in the Evidence Act that sets up a presumption of publication cannot be denied. It should not be overlooked that presumptions can be rebutted. The CIJ is concerned that hacking may lead to the wrong persons being found culpable. From a strictly legal perspective, if the hacking can be established then one would have an obvious defence.