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Anti-fake news law will be death knell for freedom of speech in Malaysia

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Lawyers for Liberty are extremely concerned with the tabling in Parliament today of the Anti-Fake News Bill 2018. The bill has far-reaching implications for democracy and human rights, and should it be passed, be the death knell for freedom of speech and the press in Malaysia.

The bill is an overbroad piece of legislation that exaggerates the problem of ‘fake news’. It criminalises ‘fake news’ as defined in the bill to include any content “which is or are wholly or partly false”. It is an extremely vague bill: it does not clearly define the malicious falsehood required for the offence, the severity of the ‘fake news’ required before attracting criminal culpability, or the defences that are open to those accused of publishing ‘fake news’.

The bill is extremely open-ended and raises serious questions on how the implementing authorities ie the police, the Malaysian Communications and Multimedia Commission and the Attorney-General’s Chambers will decide what amounts to ‘true’ or ‘false’ news.

Given that just five days ago, Jailani Johari, the Deputy Communications and Multimedia Minister, claimed that other than government-verified information, any news on 1MDB is “deemed as fake news”, we can see that the likelihood of what is determined to be ‘true’ or ‘false’ is what the authorities deem it to be.

Further, publication of ‘fake news’ covers not merely the initial post, but also any dissemination of it – simply put, sharing a link on social media can now be a crime if the authorities determine it to be ‘fake news’.

The punishments are extraordinarily harsh – those found guilty of the offence under clause 4 are liable to a fine up to RM500,000 or jail of up to 10 years, or both. In the case of a continuing offence, a further fine of up to RM3,000 a day can be implemented for each day during which the offence continues after conviction.

As an added measure, clause 6 states that “it shall be the duty of any person…to immediately remove such publication after knowing or having reasonable grounds to believe that such publication contains fake news”.

The implication of this is clear: there is now a burden not only upon those creating or sharing content, but also for server hosts, forum moderators, and even WhatsApp chat and Facebook admins to delete content that could be false. If liable, offenders can be fined up to RM 100,000, and a further fine of up to RM 3,000 a day for each day during which the offence continues after conviction.

Taken together, clauses 4 and 6 will inevitably have a massively chilling effect on freedom of speech and encourage self-censorship, particularly from independent online media, dissidents and the opposition. Those who criticise the government, who accuse them of corruption, abuse of power and other wrongdoings, will now be expected to live up to an almost impossible burden of proof: that they must be able to justify what they are posting or sharing, lest they be charged for publishing or disseminating ‘fake news’.

Clause 3 further provides for extraterritorial application so long as the ‘fake news’ concerns Malaysia or if the person affected by the content is a Malaysian citizen. It is altogether too easy to see foreign press or commentators being targeted and punished for not toeing the official line when reporting on controversial issues on Malaysia. It should be noted that extraterritorial jurisdiction is not usually invoked, except for extremely serious crimes like piracy and terrorism. This is another example of the exaggeration and overreach of the bill.

Similarly, clause 5, in language often used for the crime of funding terrorism, punishes those who provide ‘financial assistance’ to those who publish or share ‘fake news’ and makes them equally liable. The punishments are the same as those laid out in clause 4.

Finally, clause 7 allows for any person affected by ‘fake news’ to apply ex parte to the Sessions Court for an order for the removal of the offending publication. In short, the fate of an allegedly ‘fake’ news article or blog post can be decided by a judge and the complainant, with no requirement for the news outlet or blogger to be represented during proceedings of the application. Any publisher who fails to comply with the court order, can be fined up to RM100,000. This is an unfair and dangerous provision that can easily be misused to silence or harass adverse publications.

Clause 8 goes a step further in declaring that should such an order be obtained by the government and if the publication is prejudicial or likely to be prejudicial to public order or national security, there can be no application to set aside the order, leaving no recourse for the publishing party.

It is clear that the bill, should it be passed, is sheer overkill and an exaggeration of the problem of ‘fake news’. Worse, it will become yet another sledgehammer in the government’s arsenal with which to harass and attack the opposition and dissidents or anybody that refutes the government’s version of the truth.

Given the government’s track record of misusing the Sedition Act 1948, the Printing Presses and Publications Act 1984, the Penal Code and the Communications and Multimedia Act 1998 to prosecute the opposition and dissidents, it would be foolish to imagine any bona fide intent behind this bill, all the more so, with the general election just around the corner.

In its current state, we call for the bill to be discarded in its entirety. If the government is truly serious about tackling ‘fake news’, it should withdraw the bill and send it back for genuine consultations with all stakeholders or set up a bipartisan parliamentary select committee, in order to come up proper mechanisms that address the ‘fake news’ problem while respecting our democratic rights.

Eric Paulsen is executive director of Lawyers for Liberty.

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