The chilling effect: Malaysian move to fight cyber-crime tramples rights of netizens
Share this on

The chilling effect: Malaysian move to fight cyber-crime tramples rights of netizens

Recent changes to Section 114a of Malaysia’s Evidence Act were introduced, according to the government, to fight cyber-crime. However, critics say the amendments to the law are a fear tactic to silence Malaysia’s netizens and put an end to free political discourse online. We spoke to one of Malaysia’s top media freedom activists to find out more…

Amendments to Malaysian law have rendered the country’s netizens criminally liable for any acts committed under their online  identities. The changes, which also make intermediaries or publishers of material liable, remove the assumption of innocence and threaten political rights, say critics.

The Malaysian government argue that amendments to the country’s Evidence Act are necessary in order to bring about an end to cyber crime in the country.

Under Section 114a of the Act, “any person whose name, photograph or pseudonym appears as producer, 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.”

However, many fear that a law designed to curb cyber crimes such as fraud and scams will instead lead to a “tremendous chilling effect,” aimed at dampening online political debate in the country. Here, we speak with Jac Sm Kee, co-director of the Centre for Independent Journalism (CIJ) in Malaysia, to discuss the amendments.

Q: What kind of implications does this law hold for internet users in Malaysia? 

The impact of this Amendment is that it will create a tremendous chilling effect on internet users. Whether (it be) ordinary internet users, companies – not just internet service providers and online companies – but also shopkeepers who provide free WiFi in their establishments as part of their business model. Now they are suddenly liable for whatever content passes through them… any kind of content that is deemed seditious or defamatory.

Q: How does the law act to reverse the presumption of innocence?

In Section 114a of the amended law, it says if it has your name, your face, then it is assumed to be you. So if this law is enforced, nobody is going to put anything up in their name, or use their real picture, because they’ll be too afraid to be held liable…

It actually protects hackers. It assumes that if someone hacks into your account, says something under your name, then it’s you – and it’s up to you to prove that it’s not’ you’.

Meanwhile, the majority of Malaysian users are not very tech-savvy. We don’t really know how we’re supposed to prove that we really didn’t do it, when ‘you’, as the government, is telling me that you’re finding it really difficult to prove ‘who-is- who’ in the first place… The police would probably seize your computer, which would make it even more difficult.

If this law is enforced, hypothetically speaking, I wouldn’t even need to hack your account. All I would have to do is create an account in your name and use your photograph – and it is assumed to be you. It is that ridiculously wide-reaching. It is that ridiculously open to abuse. Yes, it affects everyone online – but it could also affect those who don’t even go online, at all…

So now we all exist in a state of presumed illegality, presumed criminality – the onus is now on everybody to prove their own innocence. It will really impact negatively on whether you decide you will go online…  in the first place.

Malaysian media quote de facto law minister Nazri Abdul Aziz as stating:

under the amended Act, we shift the burden to the owner of the laptop or account so that we can get to the source [of the slanderous or seditious comments because] we don’t want [anonymous or pseudonymous] people to slander or threaten others.

In an interview with Al-Jazeera, Sharil Tarmizi of the Malaysian Communications and Multimedia Commission said:

In terms of the timing… I would say that, to me, it’s happenstance. But we’ve been facing difficulties in bringing people to justice – bringing people to book. Simply because a guy says ‘it wasn’t me’ – a flat denial.

Yet critics such as Ms. Kee would describe these arguments as “ostentatious”, given that:

In terms of the types of computer crimes we have in this country… Most are for economic reasons. Scams, fraud, and so on. Cyber crime, in essence, involves someone hacking into your account, using your devices without permission, or using your service network without your authorization…

The elections in 2008… saw that for the first time the ruling coalition government did not bring in such a large majority as they had been. And a large part of this was due to online spaces, because the internet has become this very vibrant, very democratic space, where public debate takes place, and where a lot of discourse, a lot of information is being shared, because the offline media is so controlled. And that’s possibly being seen as a threat that needs to be reined in before this election.

Because of the fear that is cast, because of the presumption of liability, the main impact of the law casts fear into the minds of internet users. Right now, I find the Malaysian netizens to be quite fearless… (because of) the relative openness of the online space. This is yet another step made in order to cast fear into Malaysia’s vociferous online community.

Q: What impact do you expect this law will have on the practice of journalists, and on the practices of businesses, large and small, which undertake some of their business online?

In Malaysia, we have a practice of a culture of journalism online which is very open, very transparent. (Journalists) have no qualms in using their own names in order to publish something and to talk about particularly difficult issues. If this law were to take effect… It could encourage more journalists to be anonymous, because it comes more worrisome to be personally identifiable on a particular site or in a particular space.

In order for this to be even enforced or operationalized, it’ll take a lot of money. All (online) sites will have to change, they’ll have to ensure their platforms can identify IP addresses, etc. In that way, the law increases surveillance, and narrows expression.

The private sector will be very affected. Google has a particular stake in this issue, since they own so much of the interface of how we use the internet in Malaysia. This law will hold anyone who facilitates the publishing of content liable. It means that if you create something on ‘blogspot’, for example, then not only you as the creator of the page will get into trouble, those who comment will get into trouble, and the person who facilitates your being able to get a blog – i.e. Google – will get into trouble as well. The private sector therefore has a particular stake in ensuring that intermediary liability does not happen.

Q: What will this mean for online social media marketing as we know it, which is built on interactivity – on the communicable space?

If you have a Facebook page and you allow interactions, then you could be held liable. It will really change the characteristics of what you expect the internet to be, and the value that it brings: to individuals, to businesses, and to good governance.

Internet start-ups and SMEs drive the economy of the nation. When the government clamps down on the whole concept of what’s possible, it clamps down on innovation, new ideas, the ability to think outside the box and facilitate a growing market. On one hand, (the government) spent millions of dollars trying to invest in internet infrastructure. On the other, they’re limiting what can be produced. There’s now so many things that people will be afraid to do.

Q: Are there reasons to believe that the Malaysian government may not have a complete understanding of the means by which the internet functions?

In Thailand, for example, we’ve seen ISPs come forward to teach classes to Ministry of Information (MICT) officials, who they believe show a lack of understanding in this area. That, hypothetically speaking, these officials may not appreciate that, in the online sphere, names are no guarantee of identity…

The question of how well-versed the Malaysian Government are in relation to the internet is one that’s been raised in the past. It’s been raised by industry who’ve suggested, ‘if you really knew how the internet worked, you wouldn’t pass a law likemthis.’ I always caution about this.

It is safe to assume that the Malaysian Government is technically, very sophisticated. We are one of the first countries in the world to invest heavily in building ICT infrastructure… in technical exchange, in knowledge-sharing, in getting private sector into the country, in bilateral agreements with different countries around cyber crime enforcement, and the data-sharing that needs to happen…. We hold leadership positions in many institutions in terms of internet regulation and global governance. So not only do we have the infrastructure, the government is well-placed within international institutions and bodies around internet governance issues.

Therefore it’s a dangerous mistake to assume the government doesn’t understand how the internet works, and is passing laws due to a failure of understanding. In fact, I think you really need to understand how the internet works in order to pass a law that seems not to make sense, but has a very real impact.