Guilty until Proven Innocent?

"The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof." - Common law

For the past week, I saw copies of the following poster multiply by the dozen in the elevators as well as the stairwell of one of my uni's building:

I wondered what the whole fuss was about and whether what the poster says is true, so I Googled it and found the following pdf file, The Evidence (Amendment) (No. 2) Bill 2012 from our Parliament's official website. I extract a part of it (the bolds & underlines are my addition):

“Presumption of fact in publication

114A. (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.

For starters: presumption of fact? Oh please. Go check your dictionary. If you presume something, you assume it to be true, without fact. A fact is something that is true and indisputable; a reality. How can you presume a fact?

Besides that, not all online posts with your "name, photograph or pseudonym" come from you. Black-hat hackers might launch cyber attacks using your identity. In Twitter, you retweet other people's posts which obviously are not written by you - so is that considered as "re-publish"? In Facebook, you comment or click the buttons "like" or "share" and then the posts created by others appear in your friends' feed - so are you the one who "facilitates" the publishing or re-publishing of the publication? Friends "frape" each other on Facebook. So how to be certain?

(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.

Family members or company workers share the same network services. People publish things using their favourite restaurant's WiFi. Question is, how do you ascertain that the person who uses a particular network service is the one you're after?

(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.

What if you lend your laptop to your friend, who writes something defamatory using your account? What if your co-worker steal your phone from you and promptly puts this online: "I hate my boss! He's [include expletives here]"?

(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.”.

Evidence (Amendment) (No. 2) Act 2012 was passed in May and came into effect in June. Whoever accused is guilty until proven innocent. The accused has to come up with evidences to disprove the aforementioned presumptions/assumptions.

What I think about this amendment?

First, it seems to me that the ministers who drafted this bill have overlooked the complexity of social media. Perhaps they did not take into account the "retweet" and "share" functions.

Second, it seems, too, that the bill was drafted to prevent baseless and/or defaming accusations against the government. It doesn't serve or protect the common people's interests. It doesn't even honour the "innocent until proven guilty" principle. Why the burden of proof, normally borne by the prosecutor/the accuser, now lies with the defendant/the accused? Guilty until proven innocent ... what if the people lack the resources (e.g. money to hire lawyers) to prove themselves innocent?

Third, the government now restricts Internet anonymity, which is part of freedom of speech. In my opinion, this amendment is an indirect way of censoring the Internet. I understand that "freedom of speech" doesn't mean "complete freedom to express oneself", but the government seems to fear open discourses on the Internet. Also, if we can't express ourselves online for fear of prosecution under this act, where is our freedom? Where is our democracy heading to?

The good news is, although the bill has been passed, the act is yet to be gazetted (Free Malaysia Today, 2012; Hornbill Unleashed, 2012). As provided for by our Constitution (read it here):

A Bill shall become law on being assented to by the Yang di-Pertuan Agong or as provided in Clause (4A), but no law shall come into force until it has been published, without prejudice, however, to the power of Parliament to postpone the operation of any law or to make laws with retrospective effect.

The bad news is, yesterday the lower house of our Parliament has adjourned indefinitely. So, this case rests for a while (and might be forgotten in time, like other preceding controversies).

Guilty until proven innocent? I say NAY!