In April 2018, during its last Parliamentary sitting as Government, the Barisan Nasional rushed through a law designed, according to its supporters, to curb the spread of “fake news:” the Anti-Fake News Act. As initially presented to Parliament, the bill encompassed anyone, Malaysian or non-Malaysian, who discussed Malaysia at home or abroad. Those found guilty under the bill faced a fine of up to half a million ringgit (USD 121,000) and up to 10 years in prison. The penalties were eventually watered down, but they still remained severe, with up to six years in prison, and fines that could accumulate over time.
Malaysia, of course, is not the only country where lawmakers have been trying to find a way to combat so-called “fake news.” The problem has been commanding the attention of legislatures elsewhere, such as those in the United Kingdom, Australia, and Singapore.
Just recently, the British government proposed sweeping measures to tackle the problem of “illegal and unacceptable content and activity.” The key concerns cited in the Online Harms White Paper were national security, the safety of children, safeguarding democracy, terrorism, promotion of self-harm and suicide, and promotion of gang culture and violence. The White Paper is pushing for the regulation of online spaces as the key method of tackling any of these problems — a direction that some observers say threatens free speech. The paper’s supporters, however, have pointed out that it actually draws attention to the importance of freedom of expression; moreover, any regulation will be delegated to an independent regulator, rather than to the executive per se.
By comparison, the Malaysian law offered neither of these features. It also did not spell out the specific harms that it was attempting to address. Instead, what was being offered was a catch-all law that further concentrated power to censor in the executive, while offering no balance in terms of freedom of expression safeguards.
Further, as passed, the Act covered offenses already defined by other legislation, especially the Defamation Act and the Penal Code. The main innovation in the Act was that even without proof offered, sites could be taken down; they would then remain inaccessible until after a court had found the allegedly offending site to be innocent of the crime of spreading of “fake news” (itself poorly defined). Internet intermediaries were responsible for taking down content, or face stiff penalties, which heightened potential self-censorship.
The timing of the Act — the last piece of legislation passed before what was seen to be (and indeed was) a critical general election — also made the law suspect: It gave the impression that its key function was to prevent criticism of the member-parties of the ruling coalition and the financial scandals in which they were implicated.
While the law was not used during the election period, the only person reported to have been convicted under the Act was charged in relation to a video he made that criticized the Malaysian police force, claiming their response time in a particular case had been longer than it had been.
This case in many respects illustrates the pitfalls of the Act. First, it is important that the public feel able to criticize powerful institutions such as the police; the chilling effect of prosecution is real. Second, the person prosecuted pleaded guilty, but did not have legal representation. As in other cases of freedom of expression violations — such as the 19-year-old laborer convicted of insulting royalty in 2016 — those found guilty are disproportionately those who are unable to access legal representation. While high-profile cases, such as the investigation of human-rights activist Fadiah Nadwa Fikri, command column inches, the cases of lesser known Malaysians often reach the public only through short columns, and only after their convictions.
In August 2018, however, Parliament’s lower house or Dewan Rakyat, under the control of the parties who had been in opposition when the Anti-Fake News Act was passed, in turn passed a bill to repeal the Anti-Fake News Act. But then the bill was blocked by the upper house, the Dewan Negara, dominated by senators appointed by the previous administration.
It appears to be the first time that a bill had been blocked by the Dewan Negara, and it sets an interesting precedent, with the upper house acting as a check on the lower. This assertion of independence, however, came at the expense of Malaysians’ freedom of expression. The legislative process now allows for the bill to be either amended at the lower house, which seems unlikely to happen. Otherwise the bill will become law one year after being defeated in the upper house.
Malaysia urgently needs a model of media regulation based on the confidence that Malaysians can and should enjoy the full range of rights guaranteed in the Federal Constitution, in particular freedom of speech as guaranteed under Article 10. Rather than assuming the need to regulate and control, Malaysia needs a model that asserts the broad scope of human rights, while protecting the vulnerable against crimes such as hate speech.