Sunday June 10, 2012
The burden of proof
By DZOF AZMI
With the World Wide Web accessible by just anybody, anywhere in the world, at anytime, how does one prove authorship of a message?
THE recent amendments to the Evidence Act have raised a lot of concerns, mostly how they impact the use of the Internet in Malaysia. What many may not realise is that there is already an existing article in the Evidence Act that refers to technology, although it is not one in common use today.
Section 88 says: “The court may presume that a message forwarded from a telegraph office to the person to whom it purports to be addressed corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the court shall not make any presumption as to the person by whom the message was delivered for transmission.”
In other words, you can be sure who the telegraph was sent to, but you cannot make assumptions about who sent it in the first place – if any reader out there remembers what a telegraph is in the first place!
These days, it is far easier to forge an email than a telegraph message. A search for “How to forge an email” on Google returned more than 61 million results, and the first link I checked gave workable instructions.
It thus seems very strange that these days a sender of the email will be held accountable for its contents, but not if he had sent it by telegraph.
In Malaysian courts, the prosecution must present evidence to the court. If that evidence is persuasive enough to show that the accused is guilty, then he/she will be called up to present his/her defence.
An obvious question is: “What is persuasive enough?” If soon after a robbery, the police find someone suspicious loitering around the area with the stolen item in his hand, is that persuasive enough? Or must somebody actually see the accused stealing it?
Section 114 of the Malaysian Evidence Act does allow reasonable relaxation of the burden of proof that the prosecution needs to present, and where assumptions can be made.
As an illustration, the act states that “... a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.” (Illustration (a) under Section 114)
The court is also asked to exercise its judgment on whether maxims apply or not. The example given in the Act is that a shopkeeper may have a stolen ringgit bill in his till, but as he is continually receiving money from customers, it may not be reasonable to assume he is a thief.
So, although nobody sees you actually stealing, the fact you have stolen items with you soon after may be enough to imply you are a thief.
Now, the amendments proposed as Section 114A are quite long, so I will just paraphrase them here:
1. Anything published on a website that you own was done by you. (Likewise on any other similar platform, such as a Twitter stream or an email.)
2. Anything published on the Internet using your ISP account was done by you.
3. Anything published from a computer or phone owned by you was done by you.
(This is a gross simplification, and although I think I’ve captured the essence, I strongly encourage readers to view the original text.)
Drawing a parallel with the example of theft quoted above, the amendment will result in the following: Although nobody saw you actually write an offensive blog post, the fact that it is posted on your website is enough to imply you wrote it.
I think this is a perfectly reasonable assumption, and if the accused says, “I didn’t write the post”, it is also reasonable to ask him what could have happened and if he can prove the contrary. Did somebody steal his account? Does he share a password with a family member?
My biggest concern would be that most laymen would not be able to easily “prove the contrary” without outside help.
As it is, it is not a reasonable assumption that if you have an ISP account, then you are the only one using it. Most people get accounts for their homes, and their family and guests all share the same access. How many people know how to read Internet traffic logs that say which guest has visited which websites?
Furthermore, Section 90A (7) of the Evidence Act (the original Act) says that evidence produced from a computer owned by an accused is not admissible in court. (Again, I simplify, and you must read the Evidence Act as a whole.)
I assume the rationale for this is that one can easily doctor evidence in their own computer. However this means Section 90A compels you to seek outside help if you want to prove your innocence through computer forensics. Perhaps you need to access ISP logs, but will the ISP be compelled to provide them to you? And even if you could get them, would you be able to interpret them yourself?
As a result, if the average Malaysian was framed as the target of a covert cyber attack, it is very unlikely that he would have sufficient resources to prove his innocence, if only computer forensic evidence was considered. He would have to depend on other circumstantial evidence, such as character testimonies. The ability for the poor to get a fair trial is hampered.
The Internet is still new. If in the days of the telegraph Malaysian lawmakers accepted that it was impossible to prove authorship, what more these days when the World Wide Web is accessible by anyone, anywhere and at anytime?
Readers interested in reading the whole Evidence Act may find it at agc.gov.my/Akta/Vol.%202/Act%2056.pdf and the proposed amendments at parlimen.gov.my/files/billindex/pdf/2012/DR162012E.pdf.
■ Logic is the antithesis of emotion but mathematician-turned-scriptwriter Dzof Azmi’s theory is that people need both to make sense of life’s vagaries and contradictions.