Anonymous Online Offenders – Presumption of Innocence or Presumption of Guilt? A Comparative Analysis between the Evidence Act 1950 and the Islamic Criminal Law

Nazli Ismail Nawang, Mohd Lotpi Mohd Yusob, Aminuddin Mustaffa


Anonymity is perhaps the most valued feature of the Internet as its users are able to conceal their true identities or assume pseudonyms in the cyber world. Anonymity may be good for freedom of speech as any speakers could freely express their thoughts without the fear of being identified (though not impossible). Unfortunately, anonymity poses great challenges to law enforcement agencies as they would face difficulty in tracing cyber offenders. For that reason, the Malaysian Parliament has passed a new section 114A of the Evidence Act 1950 that has the effect of shifting the burden of proof on the alleged offenders to prove his innocence. This provision seems to be in contrast with the legal maxim of ‘semper necessitas probandi incumbit ei qui agit’ which means ‘he who asserts must prove’. This same principle has also been adopted in Islamic criminal law as the Islamic legal maxim has explicitly stated that ‘the onus of proof is upon the claimant, and the taking of an oath is upon him who denies’. As such, this paper attempts to scrutinise the approach that has been adopted by judges in interpreting and applying this new law. Further, a comparative analysis with Islamic criminal law will be made in order to ascertain whether such principle could be applied in certain cases since cyber criminals are hardly traceable or identifiable. The study is largely based on doctrinal research as it is primarily concerned with the review of relevant decided cases and statutory provisions as well as text books, journal articles and seminar papers. To sum up, it is submitted that the new law does not amount to an automatic presumption of guilt as the prosecutors are still required to prove the existence of relevant basic facts before the accused is mandated to prove his innocence.

Full Text:



Ahmad Abd Jalil lwn. PP [2015] 5 CLJ 480

Anuar, M. K. (2004). A historical overview of media development in Malaysia. Kuala Lumpur, Malaysia : MKini Dotcom Sdn Bhd.

Asia-Pacific Network Information Centre. (2004). The internet in Malaysia. Retrieved from

Azmi, I. M. (2004) Content regulation in Malaysia : unleasing missiles on dangerous web sites. Journal of Information Law and Technology, 3, 1-20. Retrieved from

Burkell, J. (2006). Anonymity in behavioural research : not being unnamed, but being unknown. University of Ottawa Law & Technology Journal, 3:1, 189-203.

Centre for Independent Journalism. (2012). Frequently asked questions on section 114A of the Evidence Act 1950, “presumption of fact in publication”. Retrieved from

Communications and Multimedia Act 1998 (Malaysia).

Dato’ Abdul Manaf Abdul Hamid v. Muhammad Sanusi Md Nor & Zulkifli Yahya [2014] 1 LNS 895.

Davidson, A. D. (1998). I want my censored MTV : Malaysia’s censorship regime collides with the economic realities of the twenty-first century. Vanderbilt Journal of Transnational Law, 31, 97-152.

Dazuki, A. (2016). No, it wasn’t me! Firasat Newsletter. Retrieved from

Defamation Act 1957 (Malaysia).

Department of Statistics Malaysia. (2016). ICT services and equipment use by individuals, Malaysia. Retrieved from /cthemeByCat&cat=395&bul_id=Q3l3WXJFbG1PNjRwcHZQTVlSR1UrQT09&menu_id=amVoWU54UTl0a21NWmdhMjFMMWcyZz09

Evidence Act 1950 (Malaysia).

George, C. (2006). Contentious journalism and the internet : towards democratic disclosure in Malaysia and Singapore. Singapore : Singapore Univesity Press.

Ismail Nawang, N. (2015). Political blogs and freedom of expression : a comparative study of Malaysia and the United Kingdom. (PhD thesis). Retrieved from University of Edinburgh Law Thesis and Dissertation Collection. (1842/10658).

Kim, W. L. (1998). Malaysia : ownership as control. Development Dialogue, 2:61, 65-74.

Malaysia. Hansard House of Representatives. Parliamentary Debates (2012, April 18) (Mohamed Nazri Aziz) Retrieved from

Mohd Sani, M. A. (2009). The public sphere and media politics in Malaysia. Newcastle upon Tyne, UK : Cambridge Scholars Publishing.

National IT Council. (2014). National IT agenda – NITA. Retrieved from

Oxford Dictionaries. (2016). Retrieved from

Peters, M. (2012). Section 114A … a presumption of guilt?. Malayan Law Journal, 6 MLJ ciii, 1-12.

Peters, M. (2015). Section 114A … guilty until proved innocent? LawyerIssue. Retrieved from

PP v. Muslim Ahmad [2013] 5 CLJ 822.

PP v. Rutinin Suhaimin [2013] 2 CLJ 427.

Radhakrishna, G. (2013). Legal presumptions and the burden of proof : s. 114A Evidence (Amendment)(No. 2) Act 2012. Current Law Journal, 1 LNS(A) lxxxv, 1-39.

Reid, E. (1998). Malaysia’s Multimedia super corridor and roles of information professionals. Paper presented at the IATUL Conferences, Purdue University, Indiana.

Silva, S. G., & Reed, C. (2015). You can’t always get what you want : relative anonymity in cyberspace. SCIPTed, 12(1), 35-50. Doi:10.2966/scrip.120115.35.

Steel, J. (2007). Malaysia’s untethered net. Foreign Policy, July/August (161), 86-89.

Suparmaniam, S. (2012, February 22). Malaysia moves up 19 notches in press freedom. New Straits Times, p. 13.

Surin, J. A. (2010). Occupying the internet : responding to the shifting power balance. The Round Table, 99(407), 195-209. Doi:10.1080/00358531003656388.

The Sun Daily. (2012, September 18). Section 114A : thorough investigation still required says AG, p. 8.

Tong Seak Kan & Anor v. Loke Ah Kin & Anor [2014] 6 CLJ 904.

Wu, T. H. (2005). Let a hundred flowers bloom : a Malaysian case study on blogging towards a democratic culture. Paper presented at the 20th BILETA Conference, Queen’s University of Belfast. Retrieved from

YB Dato’ Hj Husam Hj Musa v. Mohd Faisal Rohban Ahmad [2015] 1 CLJ 787.

Zimmerman, A. G. (2012). Online aggression : the influences of anonymity and social modeling (Masters thesis). Retrieved from University of North Florida Theses and Dissertations. (403)