[Malaysia] Anti-Fake News Bill: Further Suppression of Free Speech

The Southeast Asian Press Alliance (SEAPA) is deeply apprehensive about the impending passage of Malaysia’s proposed Anti-Fake News Bill, which criminalizes the creation and distribution of ‘fake news’. The proposal adds another weapon for the Malaysian government to control the press and suppress freedom of expression.

On April 2, 2018, Dewan Rakyat has passed the Anti-Fake News Bill, which is now waiting to be discussed by the Dewan Negara (Upper House of parliament) before passage into law. The proposed law comes at a time when the country is preparing for a general elections, expected to be called by the government within this month.

SEAPA notes that the definition of ‘fake news’ on the bill is unacceptably broad, stating that “’fake news’ includes any news, information, data and reports, which is or are wholly or partly false, whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas”.

Such a definition poses a serious danger to press freedom as it can be used against journalists. Errors in news reporting, which can normally be corrected by the reporter or news outlet, may now be subject to criminal liability, instead of being governed by ethics and self-regulation. More seriously, opinion writers, political analysts, satirists and cartoonists are also potential targets for their role in helping catalyze public opinion by interpretation, symbolic depiction or highlighting only specific aspects of certain acts.

“Without clear standards on what constitute as ‘false’ to identify the difference between malicious intent and reporting mistakes, or who is responsible for determining ‘fake news’, the Bill can be used arbitrarily to go after or suppress criticism of the government,” said Edgardo Legaspi, SEAPA Executive Director.

SEAPA believes that such a definition would allow the government to further close the already restrictive civic space in the country. The bill can be used target individual critics and civil society actors who are not covered by the Printing Presses and Publications Act of 1984 and the Communications and Multimedia Act of 1998. Both laws already penalize ‘false news’ and ‘false communication’, respectively, thus raising serious questions about the need for new and more far-reaching legislation.

Under the ‘extra territorial’ provisions of the bill, Malaysia can also go after critics abroad, as the bill can be applied to ‘fake news’ produced abroad as long as it concerns Malaysia or Malaysian citizens. Such an application widens the reach of the Malaysian government to include criticism in global media and forums such as international conferences, including in the U.N.

In addition, penalties are also imposed those not directly responsible for creating and distribution fake news. The bill includes provisions penalizing those who contribute to alleged “fake news” content are also liable for providing even partial financial assistance to the creation or facilitation of fake news, regardless of the amount. Platform providers are also liable if they do not follow content takedown orders from the courts. Both offences can be fined up to 100,000 MYR (approximately 26,000 USD).

“The bill looks like a super weapon to further suppress freedom of expression in Malaysia. The record of the Malaysian government is not encouraging when it comes to being tolerant of criticism, which is what the right to free speech seeks to protect. So we are suspicious of the timing of the passage of the new law in the context of the widely anticipated dissolution of the Parliament and the announcement of elections,” Legaspi noted.

The proposed bill will be the first law in Southeast Asia to address the issue of fake news, using the term popularized by U.S. President Donald Trump to describe his media critics. Similar proposals are being discussed in Singapore and the Philippines.

“It’s a bit sad that the issue of fake news is now being used by politicians in the region against the media to target independent journalism. At its core, ‘fake news’ is a governance problem, as these are produced to mislead the public by pretending to be real news. Real journalists do not produce fake news. They do, however, make mistakes, and they correct these mistakes as part of responsible journalism,” Legaspi said.

“Countries, like Malaysia, that seeks to fight so-called fake news can better do so by promoting greater state transparency and accountability, for example by enacting freedom of information laws and promoting free speech to counter falsehoods and disinformation,” said Legaspi.

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