An all too-real anti-fake news bill

THE Institute for Democracy and Economic Affairs (Ideas) has expressed “strong reservations on the recently tabled Anti-Fake News Bill 2018, suggesting that while the government’s stated intention is to safeguard the public against the spread of fake news, it may lead to stifling of freedom of the press, speech and expression”. Aira Azhari of Ideas’ Democracy and Governance Unit said, “this should be the time for ideas and opinions to flourish”, especially given Malaysia’s already low score in the Freedom of the World Index (45 out of 100) and World Press Freedom Index (144th out of 180 countries).

In addition, Malaysia already has enough laws and regulations to deal with instances of ‘fake news’, such as the Sedition Act 1948, the Printing Presses and Publications Act 1984, and the Malaysia Communications and Multimedia Act 1998, as well as laws against civil and criminal defamation. Indeed, these laws (imperfect though they are) already grant massive powers to the government to deal with what it considers to be fake news. One significant addition of this proposed legislation is the maximum fine of half a million ringgit and a jail sentence of up to 10 years for “providing financial assistance” used to “create, offer, publish, print, distribute, circulate or disseminate any fake news”.

The definition of what constitutes ‘fake news’ is particularly worrying, even including private text messages between individuals that contain inaccurate information. As pointed out by the Malaysian Bar in its statement asking for the proposed legislation to be withdrawn, what is ‘false’ is not defined in the Bill, and “the wording of the provisions is sufficiently wide for an action to be brought challenging ‘correct’ or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”. Indeed, the Human Rights Commission of Malaysia (Suhakam) in its statement highlighted that “the Bill fails to specify the body responsible to verify whether the news or information is fake”.

Furthermore, the law applies to Malaysians if they commit the offence outside Malaysia, as well as foreigners where “the fake news concerns Malaysia or the person affected by the commission of the offence is a Malaysian citizen”. There is probably no other legislation in our history that casts so wide a territorial net. If the court agrees with a complainant affected by ‘fake news’, then it can issue an order for the offending publication to be removed, which must be complied with, though it can be challenged. However, a complaint from the government cannot be challenged if the ‘fake news’ is “prejudicial or likely to be prejudicial to public order or national security” (as defined by the government and the court).

Finally, the haste with which this Bill is being pushed through the Dewan Rakyat and Dewan Negara will not give MPs and senators sufficient time to scrutinise the contents in detail, undermining our parliamentary process. Suhakam has pointed out that although they are “legally mandated to advise and assist government in formulating legislation, Suhakam was only invited to the final consultation, without having sight of the Bill”.

Understanding the ramifications of apparently well-intended legislation, the statement issued by chairman Tan Sri Razali Ismail said, “the government’s track record in utilising laws for reasons other than its intended purpose is arguably questionable”.

This is strong stuff from a body that was established by Parliament in 1999. Unfortunately, no backbench parliamentarians representing the parties in federal government seem to have expressed any concerns about the Bill. However, the government’s special adviser on socio-cultural matters with ministerial rank, Tan Sri Rais Yatim, has said in an open letter to the Umno Information Chief that the rushed and poorly-researched Bill could consume its makers (“boleh jadi senjata makan tuan”), and the reality will be felt once power is lost (“bila sudah tak berkuasa nanti, baru tahu langit dan bumi tinggi-rendah”).

The government has tried to assure critics that the Bill is not aimed at stifling our constitutional rights, but even if these assurances are true, perhaps in the future a tyrannical and oppressive leader will use the Bill to silence and intimidate those who criticise their financial scandals, their abuse of government power to enrich their families, and cronies while removing their enemies.

In the first ever sitting of Parliament of the Federation of Malaya the Yang di-Pertuan Agong urged MPs to conduct their affairs in such a way that it would be a “shining beacon of democracy at its brightest and best”.

If Parliament passes the Anti-Fake News Bill in this form and in this haste next week, that beacon will be further dimmed, adversely affecting future generations of Malaysians.

Tunku Zain Al-Abidin is founding president of Ideas.

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