LET’S start by calling out the “Fake News Ordinance” for what it is – an opportunistic attempt by the embattled Perikatan Nasional government to control the public narrative. The Emergency (Essential Powers) (No 2) Ordinance 2021, gazetted with no debate in Parliament due to the emergency, grants arbitrary and wide powers to the authorities to take action against anyone publishing “fake news” relating to Covid-19 or the proclamation of emergency.

Much has been said about the dangers of this law. These include the wide and arbitrary definition of what constitutes “fake news”, the abrogation of the Evidence Act thereby denying accused persons of a fair trial, the heavy-handed punishments, and the far-reaching powers which include issuing directions for the preservation and disclosure of stored traffic data.

The government claims this ordinance is necessary to “tackle misinformation surrounding the Covid-19 pandemic”. This is despite the host of laws already at the government’s disposal to deal with unwanted speech, including the also wide and arbitrary section 233 of the Communications and Multimedia Act (CMA). This law already prohibits the publication of false or offensive content with the intent to annoy, abuse, threaten or harass.

Tackling misinformation

The thing is, even if we give the government the full benefit of our many, many doubts, gazetting a heavy-handed law like this ordinance still doesn’t curb misinformation.

The government seems to be stuck in a mindset that harsh, punitive laws are an effective deterrent. They are not. If it were that simple, Malaysia would not have any corruption or drink-driving related accidents. Also, as stated earlier, we already have punitive and excessive laws that curb speech in Malaysia. These range from the Sedition Act, to criminal defamation to section 233 of the CMA to the Printing Presses and Publications Act – the list goes on. There is really no need to add to the existing arsenal.

Furthermore, misinformation spreads because of real fear and anxiety about the unknown. Much is still unknown about Covid-19. Rather than create more space for the unknown by creating barriers to information, the government should instead be paying attention to the right to information. For instance, if it wants more people to register for the Covid-19 vaccine, it must provide more information about the products and the process, not threaten those who exchange information about this with heavy fines and jail time.

Wider conversation

Any attempt to tackle misinformation must also address the huge issue of social media algorithms. Social media platforms benefit financially when their users are engaged for as long as possible, and the algorithms are designed to keep users clicking or swiping. Given how the human brain reacts more to negative stimuli rather than positive ones, this inevitably involves more polarising and emotive content being pushed to users.

We cannot have a meaningful conversation about dealing with misinformation without unpacking the infrastructure of social media that promotes siloed thinking and feeds paranoia and distrust. Coming up with one law that punishes individuals for publishing “fake news” isn’t going to change the juggernaut of social media that is already operating. Enforcing this law will be like playing whack-a-mole. Hit one, and a thousand others pop their heads up.

The effect is a law that takes away fundamental freedoms related to freedom of expression and the right to due process at trial, while being ineffective in achieving the purposes for which it was purportedly made.

Media literacy & independence

What then should an honest and smart government do to address the fear-fuelled misinformation surrounding the pandemic? Well, for one thing, it wouldn’t be trying to play whack-a-mole with wide and sweeping laws.

It would be providing information to the people, enacting a Right to Information Act and committing serious financial resources towards building infrastructure to support critical media literacy efforts. For instance, the RM40 million spent on the Department of Community Communications (J-Kom), previously JASA, could have been better spent on educating the community on identifying different types of media, checking sources and doing simple searches to fact-check claims.

The government should also be supporting media institutions by rewarding good journalism, and removing laws that hinder the emergence of independent media. Misinformation proliferates when people do not trust traditional institutions. If the government is serious about countering misinformation, it should not be creating more anxiety for the media by creating additional swathes of power, in an environment where they are already struggling to remain financially viable.

In this pandemic, we need credible sources of information more than ever and the government must do all it can to empower independent media, and not seek to control or undermine them. 

Handling criticism

Given that this law is actually counter-productive to the government’s stated aim of dealing with misinformation, this begs the question – what, then, is this law really for? Is it about dealing with misinformation or more about giving the government a blunt tool to handle the criticism that has been heaped upon its management, or mismanagement, of the Covid-19 pandemic and all its devastating effects on society?

With talk of an impending high stakes general election, and the government no doubt keen to shore up its image going into the election, the timing and utility of this law comes into further question.

In trying so hard to control the public narrative, the government may have set itself a Sisyphean task as people become more distrustful of its motives, which then leads to even more rumour-mongering and criticism. Our advice to the government if they are so intent on winning the public over, would be to stop trying so hard to control public opinion and try harder instead to do the jobs that they plotted so hard to obtain. – March 12, 2021.

* Ding Jo-Ann is a former lawyer and journalist. Jac Kee is a digital rights activist. They are both part of the Centre for Independent Journalism.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.