Vague definition of fake news may lead to inconsistent enforcement, warns Lawyers for Liberty

PETALING JAYA: Lawyers fear the lack of definition of what constitutes "fake news" in the Emergency ordinance will lead to inconsistent enforcement by authorities and parties with vested interests.

"We note also that this Ordinance does not define the term 'Emergency proclamation' and its vagueness will almost definitely lead to inconsistency of its application as well as increasing the likelihood of its abuse at the hands of the enforcement authorities or other interested parties," said lawyers for Liberty (LFL) coordinator Zaid Malek Zaid.

He said such legislation will have an adverse impact on the country's democratic system.

"LFL views with grave concern the provisions of the newly gazetted Emergency (Essential Powers) (No. 2) Ordinance 2021.

"This is not the first time we have seen an attempt to legislate an anti-fake news law on our shores, and this ordinance affirms previous criticisms that such legislation will negatively impact freedom of speech in our country.

"Though the scope of this Ordinance is limited to fake news relating to Covid-19 and the Emergency proclamation... It is difficult to grasp what public interest is served by stifling discussion on (either matter).

He said the ordinance also disregards the right to privacy by allowing enforcement authorities to search any electronic device that they deem necessary to their investigation.

"Compounded by the fact that not cooperating with such a search will open the risk of a person being fined upwards of RM100,000 and/or imprisonment, it takes no imagination to see how this provision can easily be abused by the authorities. It will create a climate of fear.

"This ordinance also attempts to disregard due process by allowing derogations from the application of the Evidence Act 1950.

"Considering the enormity of the fines and imprisonment stipulated, these derogations are unjustified and clearly contradict with sacrosanct principles of a fair and impartial trial and may lead to unjust convictions.

"We again sternly remind the government that a state of emergency is not a licence to arbitrarily legislate laws; they are at all times bound by the provision of the Federal Constitution and must specifically be cognisant of Article 150 (2B) that limits the enactment of any Ordinance to only when there exist circumstances that necessitate its immediate creation," he said.

Zaid cited the "breadth of laws that already exist" such as the Penal Code, the Communications and Multimedia Acts and others that sufficiently criminalise offending speech.

"We therefore urge the government to repeal this ordinance immediately. If they decide to go ahead, they do so at their own peril as contrary to what is stated in Section 27 of the ordinance, they are at all times morally and legally bound to judicial scrutiny for any actions taken that are in clear breach of the Federal Constitution," said Zaid.