If someone uses your laptop to publish sedition in Malaysia, will you get arrested?

Your friend has been bunking at your place for a couple of weeks. Like all friends in this modern technological era, he doesn’t ask about his sleeping arrangements first but rather your wifi password. 

You hand it over like a good host and notice that he is always furiously typing away at his laptop and hitting the enter button with a satisfied smirk on his face. He moves after those weeks and you resume your quiet life a hermit. Suddenly, there is a loud banging at your door. 

“PDRM BUKA PINTU”

You are confused...they must be here mistakenly. You open the door and they shove a bunch of papers in your face, printouts of seditious posts and comments. They explain that they traced the IP address to your name so you’re now being arrested for suspicions of sedition. You stutter your innocence, explaining how many people have your wifi password but the police tells you that this is the law…really?

Seriously, that is the law

What is happening in the scenario above is the application of a legal principle known as presumptions.

Presumptions are the slightly heavier cousin of assumptions and it is defined as a legal inference that is made in light of certain facts. As a matter of fact, the Evidence Act 1950 (“EA 1950”) states in section 4 that: 

“Whenever it is provided by this Act that the court may presume a fact, it may either regard the fact as proved unless and until it is disproved, or may call for proof of it.”

This means that as long as the EA provides for it, the judge is allowed to presume that you have done a certain action. Presumptions are further divided into certain categories but we won’t delve into that for today to avoid confusion. The EA has a long list of presumptions that the judge is allowed to make but for the purposes of today’s article, we will be focusing on the presumptions found in section 114A, which is termed as presumption of fact in publication.  

There are three kinds of presumptions under section 114A:

1. If your name/photograph/pseudonym appears as the owner/host/administration/editor/sub-editor, you are presumed to have published/re-published the publication
2. If the publication originates from an IP address that is registered under your name, you are presumed to be the publisher
3. If the publication originates from a computer (the definition of this includes phones as well) that is in your custody/control, you are presumed to be the publisher

Now, knowing the law and all is great but the real question is, why does this matter to you?

Because you now bear the “burden”

Like Sisyphus and his journey to push a large rock up a steep hill forever, you now bear a similar (sort of) burden. What we mean by burden is the concept of the burden of proof. Some of you may be aware that in law, the general principle for both civil and criminal cases is this age old maxim:

He who accuses bears the burden of proving

Simply put, it means that is the authorities are accusing you of a crime, they must prove that you committed it. For civil cases, if someone sues you for something, they must prove it. 

However, with presumptions, the tables are turned. Instead of starting from a point where the Attorney General has to prove that you had done published the seditious materials, you are starting from a point where because you have to prove that while you may be the owner, you were not the person who published those things. 

Further, from the three kinds of presumptions above, it basically means that in order to avoid ever getting caught by those presumptions, you would have to zealously guard your laptop, wifi, hotspot (or make better, politically safe friends). 

If you’re thinking that the law is whack because you are always supposed to presumed innocent until found guilty, don’t panic because…

The law doesn’t label you as guilty

The only thing section 114A does is to presume the identity of the publisher. It doesn’t presume other things that are essential to prove beyond reasonable doubt that you have committed the crime. For example, section 114A doesn’t presume things like the actus reus (action) and mens rea (intention), the two ingredients in proving most crimes. 

In essence, everything else other than the presumption works in the same way as any other crime. The police would still have to gather enough evidence to present to the Attorney General who would then decide what crimes to charge you with. 

At trial, the prosecutor similarly bears the same burden, to prove that you committed the crime beyond a reasonable doubt, in order to convince the judge to convict you. While you may be presumed to the publisher of those materials, all you have to do is raise reasonable doubt to throw shade on the prosecutor’s case. 

At the end of the day, the availability of presumptions is just assist the other party in making their case but it doesn’t relieve them entirely of their own duties.