The anti-fake news bill must be withdrawn
COMMENT | The Malaysian Bar is deeply troubled by the introduction of the Anti-Fake News Bill 2018 in Parliament yesterday.
It is the stated intention of the government to have this legislation
passed in the current sitting of Parliament, and it will likely be
brought into force before the campaign period for the 14th general
election.
The drafting of the proposed legislation raises many questions
regarding its content, intent and impact. The Malaysian Bar highlights
the following:
The definition of “fake news” does not simply include news but also
information, data and reports, which in its broadest sense exists “in
any…form capable of suggesting words or ideas,” that is/are “wholly or
partly false.”
'Fake' undefined
What is ‘false’ is not defined. “False news” is already criminalised
under section 8A of the Printing Presses and Publications Act 1984
(PPPA). The definition of “publication” in the PPPA is not dissimilar to
the various definitions in the proposed legislation.
A “false” communication is also criminalised under section 233(1)(a)
of the Communications and Multimedia Act 1998 (CMA). These provisions
beg the question of why there is any need to create a new law to
criminalise “fake” or “false” news.
The proposed law criminalises “fake news,” but since that is not
clearly defined, it could be used to suppress freedom of expression in
the context of expressing views or opinions.
The wording of the provisions is sufficiently wide for an action to
be brought challenging “correct” or “incorrect” views on, for example,
the economy, history, politics, science, and religion. Such a law may be
far too wide, and could be held to be ultra vires of the Federal Constitution.
The extra-territorial reach of the proposed legislation is, arguably,
wider than that of any other law in Malaysia. It will apply so long as
the “fake news concerns Malaysia or the person affected by the
commission of the offence is a Malaysian citizen.”
Therefore, neither the complainant nor the person complained of needs
to be physically present in Malaysia for the offence to have been
committed. Further, a court order to remove the publication can be
served “by electronic means,” which is not defined but could conceivably
include service by email, Twitter, WhatsApp, or other forms of text
messaging or social media.
An individual or entity affected by “fake news” can apply to the courts for an ex parte
order to remove the news, i.e., without informing the person being
complained of. There is no opportunity to have both parties present in
court to argue the veracity of the “fake news.”
The likely procedure is for the Sessions Court to evaluate the
complaint and any supporting evidence or documents submitted by the
complainant and, if the court decides that the item is “fake news,” to
grant an order.
An order can be challenged, but an application to challenge does not
operate to suspend or defer the original order, which must still be
complied with.
However, if it is the government that obtains the order, and it
alleges that the “fake news” is prejudicial or likely to be prejudicial
to public order or national security, and the court agrees, the order
cannot be challenged.
The proposed legislation does not deal with a situation if the
government publishes “fake news.” Looking at what is taking place around
the world, this is an omission that needs to be addressed.
If the offence is committed by a body corporate, the proposed law
allows for criminal liability to attach to its directors and officers,
but it can also attach to anyone “to any extent responsible for the
management of any of the affairs of the body corporate or was assisting
in such management.”
Thus, for example, if a news reporter writes a story about Malaysia
that is held to contain “fake news,” the editor or subeditor of the
company employing the news reporter would also be criminally liable.
Failure to abide by a court order leads to the commission of a
criminal offence, which carries a fine of up to RM100,000 and a
continuing fine of RM3,000 for each day of non-compliance. Such failure
also results in a contempt of court, and arrest is allowed under the
Criminal Procedure Code.
Why is new legislation necessary?
The many illustrations, in the proposed legislation, of how an
offence is committed under the proposed legislation actually involve the
issue of civil or criminal defamation, for which Malaysia has adequate
legislation and legal procedures.
This again raises the question of why new legislation is required. Of
serious concern is the fact that publishing a “caricature” can also
constitute an offence of “fake news.” Parodies and poking fun, which by
their very nature may involve some embellishment, would now constitute a
criminal offence.
While the use of the word “knowingly” in the elements of the offence
denotes a requirement of intention, there is no requirement of malice or
ill intent, unlike section 8A of the PPPA. However, there is another
offence in the proposed legislation, of failing in one’s duty to remove
news, “knowing or having reasonable grounds to believe” that it is “fake
news.”
What constitutes “knowing or having reasonable grounds to believe” is
not defined. This lack of certainty gives cause for concern.
The real issue of “fake news,” which is what is currently in the
minds of many governments around the world, is about the setting up of
fake social media accounts and publishing news through it, of sending
tailored messages based on someone’s online profile, and the funding of
the same, and influencing outcomes of elections.
However, these matters are not adequately addressed in the proposed
legislation. Only the issue of funding is dealt with and criminalised in
the proposed section 5.
Again, other existing legislation already caters for the offence of
aiding and abetting the spreading of false news, so this provision does
not serve any purpose except for the provision of a huge maximum fine of
RM500,000 and/or a heavy maximum jail sentence of 10 years, to act as a
chilling deterrent.
Previous issues of the prime minister receiving a vast donation prior
to the last general election, and what may have been done with those
funds, have been wholly overlooked.
The presence in Malaysia of a foreign company involved in data analytics and online profiling is also ignored.
If the Malaysian government were genuinely concerned about the
possibility of foreign funding and foreign influence on the outcome of
our upcoming general election, surely it should have focused instead on
campaign finance reform, data security, and personal privacy.
Ultimately, the public is left to ponder the “value add” of this proposed new legislation.
Regrettably, the intended provisions enable:
- The Government to immediately silence “fake news”;
- Court orders to be rendered unchallengeable if there is accepted evidence of prejudicing public order or national security; and
- Intimidation of the media and honest practitioners of freedom of expression, who must now be 100 percent correct in their reporting, postings or statements, or else stand accused of being “partially false.”
Sensitivities about the reputation of Malaysia by way of negative
comments and criticisms can now be attacked through an extremely wide
extra-territorial application of the proposed legislation, putting this
in the same category as international terrorism, cross-border
corruption, money-laundering, and trafficking in persons.
While this issue should not be ignored, the proposed broad-based law
to criminalise the dissemination of news amounts to legislative
overkill.
The Malaysian Bar calls on the government to withdraw the proposed
legislation from consideration at this current sitting of Parliament,
and to convene a proper select committee to look comprehensively and
publicly into the issue.
The government must not legislate in haste.
GEORGE VARUGHESE is president of the Malaysian Bar.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
Source:- Malaysiakini, 27/3/2018
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