Anyone, anywhere is a target under anti-fake news law

Bede Hong

The Anti-Fake News Bill 2018 will empower the Malaysian government to charge or detain any person, even outside Malaysia, whatever his nationality or citizenship, who publishes what it perceives to be fake news. – EPA pic, March 26, 2018.

THE Anti-Fake News Bill 2018 gives the government excessively broad powers, including extra-territorial jurisdiction that allows it to charge or detain any person, even outside Malaysia, whatever his nationality or citizenship, who publishes what it perceives to be fake news, said law practitioners.

Financiers of blogs or news sites can also be indicted, while court applications to reverse a publication ban can be thrown out under the pretext of national security, lawyers said. 

The bill to outlaw “fake news” tabled in Parliament today proposes a fine of up to RM500,000 or a 10-year jail term for the offender.

Put to the vote, It will require only a simple majority for the bill to be passed in the Dewan Rakyat and the Dewan Negara, which is sitting concurrently. It is then submitted to the King for royal assent, after which it becomes law.

Lawyers have raised concerns over the wording of the bill, in particular in Section 4(1), which states “any person who, by any means, knowingly creates, offers, publishes, prints, distributes, circulates or disseminates any fake news or publication containing fake news commits an offence and shall, on, conviction, be liable to a fine not exceeding RM500,000 or to imprisonment for a term not exceeding ten years or to both, and in the case of a continuing offence, to a further fine not exceeding RM3,000 for every day during which the offence continues after conviction. 

“The key to reading this legislation is the phrase ‘knowingly’,” said Lim Wei Jiet, deputy co-chairman of the Malaysian Bar’s constitutional law committee.

“The troubling question is this, ‘knowingly’’ according to whom? The accused based on his subjective reading of sources? Or according to sources vetted by the government of the day?”

Surendra Ananth says the criminalisation of fake news is a restriction on free speech that provides huge gaps for abuse. – The Malaysian Insight file pic, March 26, 2018. 

At the tabling of the bill today, the government provided several examples of what it deems to be fake news, among which was an advertisement depicting a caricature of a successful investor in an investment scheme, when the investor is actually not involved in the investment scheme.

“This is against established principles that criminal legislation must always be clear because we are dealing with the liberty of a subject,” Lim said. 

“If an accused says Mr A from Malaysia stole money, based on a comprehensive report by the US Department of Justice, but the attorney-general releases a statement that Mr A did not steal any money – has the accused then ‘knowingly’ published fake news?”

The laws also gives leeway to judges to interpret whether the accused knows beforehand that he has published false information. 

“The problem with this law is that it is worded widely,” said Surendra Ananth, the Malaysian Bar’s constitutional law committee co-chair.  

“Who decides what amounts to false information? Though it is a problem, imposing such heavy criminal sanctions amounts to oppression. If it is fake and injurious, take it to court by way of a civil action.

“If it concerns public bodies and offices, they must be open to criticism. This law can easily be used to silence critics, as the ultimate arbiter of what amounts to the truth will be the government.”

Lawyers also noted the new bill contains a provision in Section 8(3) which exempts a court order from being set aside if it is obtained by the government against a publication deemed “prejudicial or likely to be prejudicial to public order or national security”.

“Section 8(3) seems to operate as an ouster to prevent courts from setting aside orders to remove a publication if it concerns public order and national security. This is also unconstitutional. The court’s jurisdiction to address a wrong cannot be excluded,” said Surendra.

Constitutional lawyer Michelle Ng said the anti-fake news bill was “worse than the Sedition Act”.

“This is a dangerous provision as from my observation, the courts are usually slow to interfere where grounds of public order or national security are raised, on the basis that these issues are best dealt with and determined by the government of the day.”

“Even comedy and satire may now be considered fake news,” Ng said.

Lawyers also said the punishment for publishing fake news is “too severe”, “very excessive” and “disproportionate”. 

“This is extremely pernicious and disproportionate in a constitutional democracy. Currently, the government machinery and media can easily counter any fake news and individuals can sue others for defamation to vindicate their rights – there is simply no necessity for such an autocratic legislation.”

Lim said the application of the law would have “a chilling effect on our democratic freedoms and be a precursor to an Orwellian society.” 

“Already our public institutions are perceived to lack independence – this is a free pass for the governing party of the day to control our thoughts, minds and ultimately, who we vote for,” he said.

Surendran said the new law also put into doubt the status of fundraisers for campaigns and persons convicted under the law. 

“Equally, subscribers of news portals could be arguable covered. It is trite law that any restriction on free speech must be proportionate to the harm it seeks to address. 

“My view is that there is no apparent harm here. Citizens should be allowed to make their own choice in an age where verification can be done easily. Even if there is any harm, the punishment is excessive.

Surendra said while fake news is an issue, it could be addressed by other means such as civil litigation or by stakeholders assisting journalists on how to identify fake news and raising awareness of the impact of disinformation.

“Criminalising fake news is restricting free speech. It provides huge gaps for abuse. What you are essentially doing is providing the government with the power to decide what amounts to truth.”

The Illustrations of fake news in the graphic below show the ambiguity and arbitrariness with which the law could be applied. – March 26, 2018.

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