EARLIER this month, Dewan Negara voted 28 against 21 to reject the repeal of the Anti-Fake News Act (AFNA). Twenty-eight senators from Barisan Nasional and PAS defended the law and said instead of a repeal, the government should have proposed amendments. The repeal bill will now return to the Dewan Rakyat for re-tabling.
Until then, and unless the Pakatan Harapan government introduces a moratorium on the law, “knowingly” creating and spreading “fake news” will still be a crime in Malaysia. There is nothing to stop anyone from filing complaints under the law. Targets of these complaints could include the same political parties that obstructed the repeal of what is fundamentally a problematic piece of legislation.
Deputy Minister in the Prime Minister’s Department Hanipa Maidin said after the bill was rejected that the opposition members generally did not have in-depth knowledge about the law, but had the numbers to shoot down the repeal. De facto Law Minister Liew Vui Keong said the rejection was an attempt by Barisan to take revenge for the coalition’s loss in the recent elections.
Pakatan was right to repeal the law as among its first moves after coming into office, so that one of the legal obstacles to free speech is removed. This is something that the previous government and its allies should recognise as benefiting society at large.
Civil society groups – ARTICLE 19 and CIVICUS – have criticised the senators who voted against the bill, saying that it was a regressive move and impeded any efforts to bring about legal reforms.
“International standards require that restrictions on freedom of expression be clearly set out in law, and necessary and proportionate to protect a legitimate aim. UN and regional Special Rapporteurs have made it clear that broad restrictions on ‘fake news’ do not pass that test,” the two organisations said in a joint statement.
For the sake of an argument, would a tweaking of the law be adequate and make us all happy? I argue that it doesn’t. The haste, the lack of proper consultation and the timing of the 14th general elections point to a law designed to protect a narrow political agenda.
Next, for a law to be enacted, we need independent and verifiable data to show instances of “fake news” and the effects on society. Apart from political statements, we have not seen much evidence, and there is also no standard to which we can peg the definition of “fake news” to, or say with confidence, what it means in our political, social and cultural context.
Even the established democracies have been struggling with a suitable definition, mostly agreeing that there are pronounced problems with disinformation in the context of political choices, and harm as a result of hate speech, escalated by the use of social media. There is no doubt that we have to find ways to deal with the deluge of unverified information online and possibly political disinformation, but a law that seems to have had very little clarity on what it intends to regulate, or that does not take into account how technology works, is doomed to be a tool for those in power.
The main problems of the law are firstly, the lack of a clear and specific definition of ‘fake news’. Definitions are important because they provide the courts and enforcement bodies a framework for interpretation.
In AFNA, the interpretation of ‘fake news’ reads: “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 suggestion words or ideas” – in other words, fake news is anything that is partly or wholly false. But how does one measure falsehood and its range? The crime of spreading false information is contained in the Penal Code and the Communications and Multimedia Act. The court is expected to decide on such ambiguity by relying on the arguments put forward by the complainant and the person complained about.
Proponents of the AFNA and online content regulation tend to exaggerate the effects “fake news” will have on society, because even they are unclear of what the phrase means. We have seen references to a wide spectrum of possibilities: slander, fraud, insult, dissent, false advertising, hate speech, and rumours, among others. Each impacts people differently and require very specific and carefully constructed interventions, which may also include non-legal approaches. The AFNA does nothing to reconcile gaps said to be in existing laws.
Secondly, and contrary to the justification provided by Barisan leaders, AFNA does not address the issue of technological development as there are no distinctions between the ways in which information is created and shared, how interaction happens in the new media ecosystem, who the platform owners are, the potential influence of users, or even the impact of the content and who will be affected.
Apart from online content, the law also applies to information and expression in other formats, including newspapers, publication of reports, press conferences and speeches at rallies or gatherings – again with very different dynamics and significance. This means, in the status quo environment where the law is in force, even legitimate content stemming from academic research, press conferences on human rights violations, columns or news reports containing speculations on politics and business, can be construed as false. Satire and jokes are also not excluded by the law.
Finally, the law does not require the demonstration of harm or the intent to cause harm, only that a person who knowingly spreads fake news can be found guilty under the law. And if found guilty, the sanctions are disproportionately high. Penalties are fines up to RM500,000 or up to seven years in jail, or both. Those found to have financially supported the creation or dissemination of fake news, such as subscribers, sponsors and donors of news portals, can also be held liable.
The first conviction under AFNA was as rushed an affair as was its enactment. Three weeks after the law was passed, a Danish citizen, Salah Salem Saleh Sulaiman, was convicted of sharing inaccurate criticism of police on social media. Salah Salem was on a short term visit to Malaysia and was charged with spreading false news after posting a video on YouTube accusing police of taking 50 minutes to respond to distress calls following the shooting of a Palestinian lecturer, Dr. Fadi M R Albatash, on April 21.
Salah Salem was unrepresented and pleaded guilty. The court meted out a sentence but did not provide any interpretation of fake news. Had the case not been recorded, most people would not have known about the video or its content, thus raising questions of what test was used to determine the damage done.
Other known investigations that were made under the law were online messages of the royal treats to shoppers at supermarkets in Johor and Tun Dr. Mahathir Mohamad’s claims of foul play preventing his trip to Langkawi ahead of polling day.
In the Johor case, the police were quoted as saying the case would be investigated under both the AFNA and Communications and Multimedia Act (CMA). If the AFNA was meant to be the main law to deal with fake news online given the inadequacies of other laws, why was the CMA also applied?
In this transition period, where rules are constantly being negotiated and renegotiated, we may see attempts by individuals or groups to use the law against activists or politicians, and even the media. In particular, these complainants could justify the use of the law in defense of ethno-religious identities that are said to be under attack from those propagating values of democracy, liberalism, and equality. Also possible is the use of the law and state resources by private entities and individuals seeking remedies for defamation and to force the take down of content. These are potential threats to freedom of expression. Because of this, we need to quickly find ways to alter the way we speak about “fake news”, and if what we are talking about is indeed “fake news”.
“Fake news” is not an established problem. Even those who oppose legal controls sometimes conflate the references and perpetuate a flawed narrative and understanding of the phenomenon. There are differences between the more insidious, organised, and systematic attempts at disinformation, and slander, or individuals venting online, or the shoddy work of news media that publish single source and unverified.
In private settings and casual conversations, we often hear people refer to “fake news” in jest but it is important that we do not normalise or oversimplify the phrase. It could result in the invalidation of legitimate opinions or expressions. Such normalisation is a dangerous precedent to set. Opinion leaders in particular, and the public in general, must call out problems for what they are, and not resort to the simplistic references offered by the catch-all phrase that is ‘fake news’.
In the meantime, it is in our interest to scrutinise how the enforcement agencies, government prosecutors and the courts will deal with complaints lodged related to fake news. Will the Law Minister instruct the police to not conduct investigations under the AFNA or for the Attorney-General to not pursue such cases in court? It would be useful if such information is systematically documented and shared so that the public can engage in meaningful conversations about their rights to various forms of expressions, permissible limitations, and the appropriate remedies for those who experience harm.
Gayathry Venkiteswaran is a former journalist and an assistant professor at the University of Nottingham Malaysia Campus, where she teaches media and politics.