THE politics of delay around the repeal of Malaysia’s Anti-Fake News Act offers an opportunity to manage racial disinformation that can lead to social tensions. This is important as post-election posturing in the country has brought ethnic politicking to the fore.

While it has been argued that the promotion of falsehoods and hatred between communities can be dealt with through existing laws, such as the MCMC Act 1998 – where publishers are mostly held accountable – content created and disseminated by individual producers over social media and extra-territorially begs consideration in any legal or other type of intervention.

According to We Are Social’s Global Digital Report 2018, of a population of 31,830,000 in Malaysia, 79% of Malaysians (25,080,000) have access to the internet and 76% of Malaysians (24,080,000) access it via mobile devices. Malaysia’s Statistics Department noted in March that smartphone usage for access to the internet increased to 97.7% from 97.5% in 2015. In total, Malaysians spend an average of eight hours, 27 minutes per day online.

In terms of social media, 75% of Malaysians (24,000,000) access it mostly via mobile devices and spend an average of three hours per day on it.  The breakdown of Malaysians using different social media platform are as follows: Facebook (16,800,000), Facebook Messenger (11,280,000), WhatsApp (16,320,000), Twitter (7,200,000), YouTube (16,560,000), WeChat (9,600,000) and Instagram (11,760,000).

These statistics showed that in Malaysia and elsewhere, information creation and consumption is taking place over social media platforms and accessed largely via mobile devices. Consumption of, specifically, news online in Malaysia is distributed as follows: Facebook (58%), WhatsApp (51%), YouTube (26%), WeChat (13%) and Instagram (13%), according to the Digital News Report 2017 (Reuters Institute for the Study of Journalism).

In countries such as Malaysia, which tops the world rankings for WhatsApp usage according to the Digital News Report 2017, there is an increasing preference to circulate information and messages via this platform. Users enjoy a feeling of privacy and secrecy until the message circulating via WhatsApp spills onto publicly exposed platforms, such as Facebook or Twitter.

When the Anti-Fake News bill was first introduced by the BN government, the disagreement to it was anchored around concerns that the new law would be used to curb the freedom of expression of political criticism, in particular of 1Malaysia Development Bhd.

The definition of what “fake news” is and the Malaysian government’s position to define the “truth” unilaterally via the anti-fake news law and applying it extra-territorially with sanctions of up to six years in jail and a maximum fine of US$123,000 (RM509,000) caused alarm.

Current attention is on the politics of delay surrounding the repeal of the Anti-Fake News law. Passed under the BN government on April 2, the law was repealed by the Dewan Rakyat last month by the Pakatan Harapan government following its victory in the May 9 general election.

However, the rejection of the repeal by the Dewan Negara on Wednesday could result in a delay of up to one year due to the retabling of the bill’s further reading at the Dewan Rakyat. Thereafter, at the third stage, the Yang di-Pertuan Agong has 30 days to consent. However, the repeal can come to force even without the Agong’s consent once the 30-day period lapses, making the repeal inevitable.

In the meantime, the PH government could consider declaring a moratorium on the law, convince BN senators to support its repeal or increase the number of PH senators in the Dewan Negara.

Apart from repealing the Anti-Fake News law as part of its pre-election promise, the PH government would also have to make its stance clear on Malaysia’s signing on to the Asean Framework and Joint Declaration to Minimise the Harmful Effect of Fake News on May 10. The declaration, among other non-legislative measures, seeks to encourage member states to adopt laws and regulations that minimise the harmful effects of fake news.

Notwithstanding concerns around the right to political criticism and freedom of expression, the primary challenge for Malaysia is how to manage viral disinformation around race-related issues that might lead to social unrest.

If the current legal tools, scattered across several pieces of legislation, are unable to do the job, then solutions need to be considered without comprising on the rights of the rights holders.

These would also need to include non-legislative tools, such as critical thinking, fact-checking, media literacy and quality of journalism, to name a few. The evolving efforts of technology companies and artificial intelligence to mitigate fake news need also be considered.

Without integrated legal, non-legal and technical intervention, Malaysian politics risks falling prey to manufactured disinformation in the country’s post-election racial posturing.

Given Malaysia’s politically and culturally diverse make-up, updates of speech laws need to be done in consultation and with sensitivity of the many stakeholders in society. In this way, the quality of debate in Malaysia can be raised. – September 16, 2018.

* James Gomez is chair of the board of directors of Asia Centre. 

* 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.