Something as dry and legal as the burden of proof actually matters, as Malaysian lawmakers are determined to show their country’s internet users. Just not in the way they planned.
Malaysian lawmakers claim they want to crack down on people committing crimes on the Internet. Like sending out spam or other illegal content. But it’s been really, really hard to convict those people. So they decided to amend their Evidence Act 1950 to switch the burden of proof when it comes to saying who published an article or other writing in three specific instances.
- If your name or photograph appears on a publication as the author or editor then you will be the presumed author or editor.
- If content is published under an Internet Service Provider account that belongs to you then you will be the presumed author.
- You will be the presumed author of any content that originates from a computer in your custody or control.
It doesn’t take much to imagine the scenarios where this standard could be abused. If I publish a blog article with horrible lies about a public official but put your name or photo on the top as the author, you will now have to prove you didn’t write it according to the first change. Or if I’m a spammer I can just use your name on the emails and, voila!, you’re now a spammer in Malaysia.
Under the second change, if I go over to your house and publish the same disparaging blog post via your WiFi network then you will be the presumed author and you will have to prove it wasn’t you.
The last change would let me use any computer in your house to publish that same blog post and now it’s your fault. Or, from a broader perspective, anyone with control over, say, a building full of computers would be the presumed author of anything written on those computers.
Granted, all of these are presumptions and can be refuted. But how do you prove you didn’t write something? Even what would seem like a strong alibi–like I wasn’t in the building when that computer published the story–works less in the digital age when publications can be scheduled for later dates. I can’t think of a way to disprove authorship absent someone else coming forward to say they did write it and you going along with it.
Critics of the law say that the changes have nothing to do with detecting spammers and other illegal activities but rather as a way to crack down on politcal speech for the upcoming elections. I don’t know about the specific intent of the law but I think we can all agree this will do absolutely nothing to curtail spammers or other intentional illegal online acts.
Spammers and pirates and other illegal online users don’t typically attach their real name to the content–and now thanks to the first change they are far more likely to put another person’s name on the content because now the presumption is already on the innocent party. And as for tracking the specific ISP account or computer, the majority of times that level of detail isn’t available for cybercriminals. You’re far more likely to track down computers or people who have had their systems compromised due to malware.
The downside to such changes in the burden of proof are hopefully obvious. And I wouldn’t at all be surprised if the politicians who passed this law suddenly find their names and pictures on some questionable publications just so they can experience the joy of trying to prove they didn’t write it. The burden of proof isn’t something non-lawyers think a lot about beyond the well-known “innocent until proven guilty” saying. But it’s actually a concept that matters a lot as I imagine many Malaysians are about to find out.