Whatever your opinion on the 45th President of the United States, the fact of the matter is that ‘fake news’ is now a part of our lexicon, so much so that that the latest ‘Fake News Bill’ (that is, Emergency (Essential Powers) (No.2) Ordinance 2021) is colloquially known as such. Operational from 12 March 2021, it seeks to curb the widespread sharing of ‘fake’ or ‘misleading’ information regarding COVID-19 and/or consequently, various treatment and vaccine policies, presumably also to Make Malaysia Great Again.
Just kidding, but only about the last bit.
A quick glance through Section 1 to 3 reveals that Part I of the Ordinance lays out the interpretative scope of the Act, which by and large is to be interpreted in a layman’s fashion. For example:
| “Fake news” includes any news, information, data and reports, which is or are wholly or partly false relating to COVID-19 or the proclamation of emergency, whether in the forms of features, visuals or audio recordings or in any other form capable of suggesting words or ideas; |
It is also worth noting as well that the Act interprets ‘publication’ so as to include digital and electronic forms of writing, referencing as well various devices and network services with reference to the Communications and Multimedia Act 1998. The intention here is clear, the Act means to target mass-texting, chain-email and group-chat copy-and-paste messages that may contain false information. So that shady uncle or overly-involved aunt of yours that likes miracle cures a little too much? That counts too!
Further down the Act, Part II makes clear that both the making of and sharing of this news may attract liability:
| 4. (1) Any person who, by any means, with intent to cause, or which is likely to cause fear or alarm to the public, or to any section of the public, 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 one hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both, and in the case of a continuing offence, to a further fine not exceeding one thousand ringgit for every day during which the offence continues after conviction. |
In short, up to RM100,000, or up to 3 years or both, and not more than RM1000 for each day the offence continues post-conviction. The Act further goes on to provide, inter alia:
- Applies overseas, so long as you are a Malaysian Citizen. (S3)
- Police are empowered under the Act to make arrests without a warrant (S16)
- Facilitating the act could make one liable, if they consented/had knowledge (S25, 26)
- Police may make orders for you to remove the fake news within 24 hours (S6(1))
- Statements made by anyone during the investigation, and statements made by the accused at the time can be used (S11 and 12)
- If evidence cannot be shown in court, a LIST of evidence gathered can prove its existence (S14)
WHAT DOES THIS ALL MEAN?
I don’t want to use the word ‘Orwellian’ but if the shoe fits, then why not? The good news first though: seems that ‘intent’ is a core component of liability, as per S4(1), so presumably those who, say, forward random messages with outrageous claims without the specific intent to push ‘fake news’ will not be liable. It is unclear though, whether this will be laxed to allow for ‘should-reasonably-know’ standard to apply, but the specific wording of the Act seems to suggest that it will not.
And now for the bad news. First and foremost:
WHO DEFINES THE ‘FAKE’ IN FAKE NEWS?
The Act does not make clear what ‘fake’ or ‘false’ means, what sources are to be cited as the Grand Arbiters of Truth, or who gets to be the Reality-Tsar-Of-The-Day. Dr Oh Ei Sun in a Straits Times article mentions that this Act enables the state to persecute dissent by defining it as ‘fake’ and is ‘reminiscent’ of the actions taken during the 2018 election. Human Rights Watch writes that the ordinance ‘fails to establish standards for determining what is false’. The Institute for Democracy and Economic Affairs (IDEAS) writes as well that this bill ‘basically gives the government sweeping powers to define any material as being “fake news”’.
WHY THE SEVERE PENALTY?
RM100,000? 3 years? It’s like getting caught sticking chewing gum on a lamppost in Singapore. This is a question of proportionality, is it fair that such a heavy punishment be laid upon one for a crime such as this? Presumably the answer is no. In the aforementioned Human Rights Watch article, Lakhdir expresses concerns that the penalty will ‘make ordinary people fearful of discussing Covid-19 and the emergency proclamation’. Tricia Yeoh of IDEAS comments as well that the RM100k and/or 3 year jail time is ‘unnecessarily severe’.
WHY THE OVERARCHING POWERS?
I don’t mean to adhere to Godwin’s Law (that is, an internet adage that states that online discussions inevitably devolve into accusations of Nazism), but again, siapa makan cili, et cetera. That is to say, the word I’m looking for here starts with a G and ends with ‘estapo’.
Okay okay, jokes aside, this Act empowers police to arrest people WITHOUT a warrant. Pursuant to S11, 12 and 14 as well, it seems that the normal standards of Evidence has been discarded in favor of a lower one; that is to say, it is much easier to admit relevant evidence, especially statements made, than it normally would be.
AN OLIVE BRANCH PERHAPS?
Article 10 of the Human Rights Act 1998 states that ‘everyone has the right to freedom of expression’, subject to various restrictions prescribed by law and that are necessary in a democratic society. This includes national security and public safety. The long and short of it is that internationally, concessions can be and have been made to freedom of speech where safety and security is concerned. If I were to ‘steel man’ (as opposed to straw man) the argument for this Act, it this would no doubt be my guiding principle.
For example, in the UK, some steps have been taken to outlaw what is known as ‘hate speech’, such as the Public Order Act 1986 (POA) which basically criminalizes language that is, or does cause another person harassment, alarm or distress. Language that encourages terrorism is criminal under the 2006 Terrorism Act. Grossly offensive language is also illegal as per S127 of the Communications Act.
In short, this is not a new thing. Western countries have adopted legislation based on similar principles in recent times.
OR PERHAPS, NOT:
In Miller v College of Police (2020) EWHC 225, the Honorable Justice Knowles quotes Animal Farm, saying that:
| If liberty means anything at all, it means the right to tell people what they do not want to hear. |
He goes on to quote Hoffman LJ in R v Central Independent Television plc (1994), stating that ‘a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom’. Free speech all but REQUIRES that which is offensive, irritating, contentious, eccentric, heretical, unwelcome and provocative to be allowed. As Sedley LJ states in Redmond v DPP (1999), ‘freedom only to speak inoffensively is not worth having’.
Now, I don’t mean to glorify or give credence to the waves of fake information about COVID-19 and the vaccines and by no mean think that they are Autism inducing ‘vials of death’. I also don’t think that piling atop each other without masks is the way to go. I do recognize as well that convincing a traditionalist Malaysian population that Big Government only wants the best for you (so just take the jab darn it!) is a big, necessary hurdle.
Well whatever the case, for us Malaysians at least, it would be wise to think twice before clicking the ‘share’ button on that catchy article you’ve just read, if for no other reason that you might end up paying for it, whether you think it’s fair or not.
End
Author: Derek Kho; BSc (Health Sciences) University of Liverpool, LLB (First Class Honours) University of London UK, writer and contributor to asklegal.com, KINO Sarawak cultural heritage magazine and a published author in KL Noir, an anthology by Fixi Novo.
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