We have been pleased to publish the criticism byStephen Mason, editor of the eminent practitioner's textElectronic Evidence,to the President of the Malaysian Bar, Mr Lim Chee Wee, upon his views onsection114Aof the Evidence Act 1950, recently introduced by the Evidence (Amendment) (No. 2) Act 2012.
Dear Mr Lim Chee Wee,
In propinquity to this matter, the brand new book ofElectronic Evidence(which is published inNovember 2012), includes further materials (especially in chapters 2, 3, 4, as well as 5) to support your argument relating to the brand new s. 114A introduced by the Evidence (Amendment) (No. 2) Act 2012.
The legislation in New Zealand has an interesting provision in the Evidence Act 2006 in propinquity to hearsay, which, arguably,a posting upon the Internet contingency be.
The provisions is as follows:
18 General admissibility of hearsay(1) A scuttle-butt matter is admissible in any proceeding if(a) the resources relating to the matter provide in accord with declaration which the matter is reliable; and(b) either(i) the builder of the matter is taken as the witness; or(ii) the Judge considers which undue responsibility or check would be caused if the builder of the matter were compulsory to be the witness.(2) This territory is theme! to sect ions twenty as well as 22.
The necessity to provide the 'reasonable assurance' of trustworthiness is of fundamental importance, as well as 'circumstances' is defined underneath s 16(1) to embody consideration of the following questions:
sixteen Interpretation
(1) In this subpart,circumstances, in propinquity to the matter by the chairman who is not the witness, include(a) the nature of the statement; and(b) the contents of the statement; and(c) the resources which describe to the creation of the statement; and(d) any resources which describe to the veracity of the person; and(e) any resources which describe to the accuracy of the regard of the person
It competence be probable to take the New Zealand in front of upon scuttle-butt statements as well as review the position. There is reference to case law in the chapter upon New Zealand inElectronic Evidence.
In evaluating electronic evidence, subsection 3 to s. 114A is highly significant:
(3) Any chairman who has in his carry out or carry out any mechanism upon which any announcement originates from is reputed to have published or re-published the calm of the announcement unless the contrary is proved.
The consequential difference have been 'in his carry out or control'. A chairman competence have the mechanism or mechanism like-device in their custody, but the device competence not belong to them, as well as merely being in carry out of the device is frequency (unless the resources suggest otherwise) the reason to presuming they have created defamatory comments upon the web site upon the Internet.
Second, 'control' is of the pinnacle significance, which is covered in detail in chapters 2 as well as 5 ofElectronic Evidencein different ways. we can be regulating my mechanism to hope for this document as well as additionally make use of the Internet to send as well as receive e-mail, as well as we mightthinkI am in carry out of the device, but it competence be which the third chairman or persons different have gained access to my mechanism via Trojan horses or an additional form of antagonistic software, as well as competence be regulating my mechanism as well as the report associated with my mechanism as well as Internet custom address to be doing things which we am not aware of (a elementary example is where people download song or drive-in theatre without paying for them, regulating the Wi-Fi tie of an additional person, so the chairman whose tie is being used is wrongly accused of hidden egghead property). Again, this is covered in distant some-more detail inElectronic Evidence(with relevant citations of writings as well as articles) in propinquity to this matter. It may be which the meaning of 'control' will be of stress for lawyers traffic with this issue in the future. To which end, it is important for all lawyers to be educated in the sum of computers as well as how they work, as we prove in my paper in theDigital Evidence as well as Electronic Signature Law Review from 2010.
The stress of s. 114A should not be lost upon the politicians.
As my wife as well as we were withdrawal Malaysia this summer, we readThe Star, dated 24 Aug 2012. On page 2 was an essay created by Edmund Ngo entitled 'Section 114A stays, says Nazri'. On the page opposite, which is upon page 3, was an essay entitled 'I dive, we don't tweet' about Pandelela Rinong Pamg, who won the bronze award in the Olympics in London, as well as who reliable she did not have the chatter account, even though the chatter criticism had been set up in her name.
What would occur to her if the defamatory criticism had been posted upon the chatter account? Would movement have been taken opposite her? Probably no action, because of her fame, but an ordinary chairman would have poignant difficulties in traffic with the presumption set out in s. 114A in similar circumstances.
Stephen Mason
8 Oct 2012
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