by Foong Cheng Leong
Published April 16, 2013
Article first published in Loyar Burok on 16.04.2013.
I am no expert in election laws but GE13 Candidates should take note of this: if you are running a blog, I suggest you moderate or close the comments section until and after the 13th General Election.
The reason why I say so: S. 114A(1) of the Evidence Act 1950 and the Election Offences Act 1954.
S. 114A(1) provide the following:
“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.””
In simple words, if your name, photograph or pseudonym appears on any publication depicting yourself as the aforesaid persons, you are deemed to have published the content unless you prove otherwise.
Also, if you have in any manner facilitated to publish or re-publish the publication, you are presumed to have published the content of the publication.
This means that website owners are deemed to be publishers of contents of a publication although the author of the publication is someone else.
Further, it is not possible for a website owner to prove that he is not a publisher given the wording of the section i.e. the words “in any manner facilitates to publish or re-publish the publication”. By providing a virtual platform, the website owners facilitate to publish or re-publish a publication.
In this regard, you will potentially commit an election offence if someone posts a comment which falls within the scope of corrupt practice. If found guilty of an election offence, the election of a candidate will be declared void (S. 32 of the Election Offences Act 1954).
What I have mentioned is not without basis. A similar scenario had happened after the 12th General Elections:
In Kho Whai Phiaw v Chong Chieng Jen (Election Petition No.: 26-01-2008-I), an elector in the Bandar Kuching constituency presented an election petition to have Mr. Chong Chieng Jen’s (representative of the Democratic Action Party (DAP)) election declared void.
The elector sought to have Mr Chong’s election voided on the ground that the latter had engaged in the corrupt practice of (i) undue influence and (ii) bribery, to procure his victory in the election.
The elector alleged, among others, that a letter from one Mr Smith published on the comment section of Mr Chong’s blog site is said to contain certain threatening statement. The elector alleged that Mr Chong had exercised undue influence over the non-Muslim voters in the Bandar Kuching constituency through Mr Smith’s letter appearing on his blog site.
Fortunately for Mr Chong, the High Court held that Mr Smith’s letter was posted by one commentor by the name “Responsible Christian Voter” (‘RCV’). Mr. Smith was the author of the letter and it was RCV who published that letter through Mr Chong’s blog site.
The Court held that Mr Chong was therefore not the publisher of the letter. The case was later upheld by the Federal Court (see Kho Whai Phiaw v Chong Chieng Jen  3 CLJ 201).
But Mr Chong’s case was pre-114A. If S. 114A applies, Mr Chong would be considered as the publisher of the letter as his blogsite facilitated its publication. Mr Chong could potentially commit an election offence if 114A applied. That is the effect of 114A. It creates liability on a virtual platform provider.
This, of course, is not tested in our Courts yet. One may argue that it is the blogsite provider (e.g. Google who owns Blogger.com) who would be liable, provided that such blog was hosted by the provider.
Nevertheless, as an abundance of caution, GE13 candidates should close their blog comments section to avoid such actions. Interestingly, Mr Chong’s blogsite has closed its comments section.
A Facebook page is also another concern. It may be argued that postings by users on a Facebook page were not published by the Facebook page administrator, as it appears on a separate page.
However, Facebook comments that appear together with postings by a Facebook page’s administrator is different. It is arguable that such comments were published by the Facebook page owner.
With this risk of having an election declared void, I hope that the new Parliament will relook into 114A when it convenes in the future.
It’s time to #stop114A.