Chapter 3 - Report of the Research and Policy Development Group safeguards and oversight may violate the right to privacy. The Commission recommends that interception of communications should only be done pursuant to a court order, for specific purposes and a specified period of time. (iv) Section 30 compels the court, upon an application by the Public Prosecutor, to commit an acquitted person pending exhaustion of all appeals. This would violate the personal liberty of the individual concerned. While noting that the intention is to prevent the individual from absconding and to ensure his/her attendance in court, the Commission asserts that the provision infringes on personal liberty, more so when the person has been acquitted by an impartial and competent judiciary. For this reason, the Commission strongly urges a review of Section 30 and suggests the adoption of procedures similar to other criminal cases in ensuring attendance in court, such as the surrender of travel documents and the payment of a bond. (b) Section 114A of the Evidence (Amendment) (No. 2) Act 2012 Section 114A was added to the Evidence Act 1950 to provide for a case of presumption of fact in the posting of content via the Internet. The amendment came into force on 31 July.8 A person whose name, photograph or pseudonym appears on any posting depicting himself as the owner, host, administrator, editor or sub-editor is presumed to have posted the item unless otherwise proven. Any person who in any manner facilitates the posting or re-posting of content is also presumed to be the person who has posted it. The underlying purpose of Section 114A is to facilitate the identification of those who anonymously post content. The presumption in Section 114A is a presumption of fact and is rebuttable, which means that a person against whom the presumption is applied may adduce evidence to rebut the presumption. However, rebuttal may be difficult in the Internet environment for, in reality, the average person and even some corporations may not have the time, resources and more specifically, the technical expertise to rebut the presumption to prove their innocence. Section 114A does not shift the overall burden of proof which, in criminal cases, lies with the prosecution, and, in a civil action, with the plaintiff. However, in practical terms, it may have the effect of reversing the burden to the accused or the defendant, as the case may be, thus violating a fundamental principle of law. In this regard, the Commission’s concern is about the exposure of an innocent party to being wrongfully prosecuted or sued for acts committed by a third party; the Commission is of the view that there should be legislative safeguards against such a possibility. It is the Commission’s recommendation that before any person is charged or sued, opportunity should be given to that person to take remedial action, such as to take down or delete the posting. It is only where there is a failure to act that prosecution or court action may be instituted. Such ‘safe harbour’ provisions are fairly common features in relation to offences or infringements involving use of the Internet. 8 82 P.U(B) 255/2012