https://www.accessnow.org:443/malaysias-dangerous-fake-news-law-is-still-on-the-books-it-must-be-repealed/
Malaysia's flag

Malaysia’s dangerous “fake news” law is still on the books. It must be repealed.

In a recent setback for free expression in Malaysia, the Senate (Dewan Negara) of Malaysia’s Parliament rejected the Anti-Fake News (Repeal) Bill 2018 (“Repeal Bill”), which was earlier passed by the House of Representatives (Dewan Rakyat) of the Parliament. The Repeal Bill is intended to roll back the controversial Anti-Fake News Act 2018 passed by the Najib Razak-led government in Malaysia. Senate President SA Vigneswaran announced rejection of the bill after a vote on repeal on 12 September. In the narrow vote, 28 senators opposed the bill, while 21 supported it, with three members abstaining from voting.

In the earlier House of Representatives consideration of the Repeal Bill, it passed by a majority in a simple voice vote on 16 August.

Access Now urges the Malaysian government to once again advance the Repeal Bill in Parliament and ensure that all steps are taken to have it passed by both houses.

The troubling enactment and use of Malaysia’s law to stop “fake news”

The Anti-Fake News Act entered into effect on 11 April, only days before the 14th General Elections on 9 May. Since the introduction of this act in April, followed by its enactment, human rights advocates have criticised the law for undermining free expression. Advocates for free and open democratic discourse point out that the law is open to abuse to silence dissent and opposition to Malaysia’s ruling party during any elections.

There are a number of serious concerns that have been raised regarding the impact of this law on the freedom of expression and associated human rights. The primary concern is the over-broad definition of “fake news,” with no clear definition or standards to define it. Broad and vague terms expose the law to abuse by the government to suppress dissent. The extra-territorial application of the law is another major flaw, rendering it impractical. It can apply to anyone, regardless of her nationality or origin, if the purported “fake news” concerns Malaysia or a Malaysian citizen. The scope of the law extends further to penalise the stakeholders providing “financial assistance” to produce or disseminate vaguely defined “fake news.” This means that apart from the threat to the freedom of speech, the law also threatens the media business. The law compels platform owners to comply with content removal orders, and if they fail they are penalised. The law allows the person affected by the “fake news” to request a court order for content removal.

A poisonous context for democratic discourse

In parallel with enactment of the Anti-Fake News Act are attempts to silence dissent and opposition. Access Now’s Digital Security Helpline has had numerous reports that indicate a dirty tricks campaign was underway in Malaysia coinciding with general elections. These reports provide evidence of Distributed Denial of Service (DDoS) attacks on the mobile phones of opposition politicians and activists, who got multiple automated calls per minute — effectively making their phones useless for communication. These tactics are clear attempts to block communications, and they seem to be in line with the passage of a “fake news” law.

Notably, the current Prime Minister of Malaysia, Mahathir Mohamad, was among the very first to be investigated under the “fake news” law when he was part of the opposition party campaigning prior to the election. Repealing the law was one of the major election promises the Prime Minister made.

After winning the election and taking over as the Prime Minister, Mahathir Mohamad initially argued in favour of reviewing the law instead of repealing it, asserting that there are “limits” to freedom of the press and free speech. However, he finally decided to act on the campaign promise made by the Pakatan Harapan by introducing a repeal bill in Parliament in August. The Deputy Minister in the Prime Minister’s Department, Mohamad Hanipa Maidin, said, “we don’t need new legislation. We already have existing laws, such as the Communications and Multimedia Act 1998 and others that can deal with this phenomenon.” Minister Maidin also added that the police and law enforcement agencies should be empowered to deal with the issue of “fake news.”

Only 12 parliamentarians debated the Repeal Bill for three hours on August 16 to roll back the existing contentious law, before the House of Representatives agreed to passing the bill by a simple voice vote. This is in contrast to the nearly two days of debate and disagreement when the original law was passed by the House of Representatives on 2 April (the Senate passed the bill the following day).

In Malaysia and elsewhere, support for badly crafted “fake news” laws chills freedom of expression

Pakatan Harapan (the ruling coalition) lacks a majority in the 70-membered Senate. The Senate is dominated by the Barisan Nasional, the opposition coalition. Barisan Nasional members, along with members of the Parti Islam se-Malaysia, an Islamist right-wing party of Malaysia, blocked the Repeal Bill despite the support in the House.

Kahirul Azwan Harun, a senator from the main opposition coalition, Barisan Nasional, explained the reasons for opposing the House-approved Repeal Bill. In a statement, he said, “The threat is real and I fear our political landscape is too young to be further polarised because of fake news. The basics of democracy, debate, and dialogue all depend on commonly accepted facts. And that is what we want to protect. This anti-fake news law should be a protection for the common man, against interests, either local or foreign, that aim to embroil our society in endless, unproductive confrontation.”

This defence of legal measures that harm free speech in the garb of tackling “fake news” is unfortunately not unique to Malaysian lawmakers. The phenomenon is becoming a trend across Southeast Asia. The government of Cambodia recently announced a new directive aimed at combating “fake news” that would reportedly, among other restrictions, require websites to be registered with Cambodia’s Ministry of Information or face additional scrutiny. The announcement came just ahead of Cambodia’s general election concluded at the end of July this year. These developments are part of a broader global trend evident in Asia and across the Middle East and North Africa. Many governments — including Malaysia, Bangladesh, Vietnam, and India — are regulating or attempting to regulate “fake news.”

The bigger picture is even more troubling. Civil society and free expression advocates across the globe are seeing governments move aggressively in this area, including pushing private internet intermediaries to restrict online content as a way to stop “fake news,” counter terrorism, or combat illegal content and hate speech. Access Now is deeply concerned about this type of legislation and content regulation. As we have said elsewhere, we urge policymakers to move away from actions under the umbrella term “fake news.” Instead of advancing problematic laws that are open to abuse — such as Malaysia’s Anti-Fake News Act — we encourage all actors to move forward on laws that would have a positive impact on human rights.  For instance, we strongly support efforts to adopt, strengthen, and respect enforceable privacy rules which can address challenges in the information ecosystem, including helping to stop the practice of profiling and targeting users with propaganda and disinformation.

Ensuring that Malaysia’s efforts to defend free expression are not derailed

The Repeal Bill becomes of historic importance in the legislative history of Malaysia as it is one of very few bills that has been rejected or sent back to the House of Representatives by the Senate.

Fortunately, rejection of the Repeal Bill by the Senate does not close the doors for repealing the Anti- Fake News Act. Under Article 68 of the Malaysian Constitution, the House of Representatives has the power to re-table the Repeal Bill with further amendments (if any) for the consideration of the Senate after a year. There are two possibilities. First, considering the demands of the opposition, the government might choose to only amend the existing Anti-Fake News Act passed by the previous Najib Razak led-government instead of repealing it wholesale. Second, the government, acting through the House of Representatives, might choose to re-table the repeal bill as is after a year to the Senate, at which point any Senate amendments or rejection of the bill can be overridden with a direction to the Malaysian Head of State to grant assent.

Next steps: keep the reform moving forward

Besides striking down the Anti-Fake News Act, we encourage lawmakers to follow through on reforms on a number of other existing laws. Freedom of expression was one of the major promises made in the manifesto of the Pakatan Harapan. After the formation of the new government, a number of Malaysian institutions have been working persistently to remind the newly elected government of its promises to revise existing laws that pose threat to the freedom of expression and digital rights. The Southeast Asian Press Alliance has demanded review of the draconian provisions of the Communications and Multimedia Act 1998 and the repeal of the Printing Presses and Publications Act 1984. The organisation also reminded the government of the need to reform the acts mentioned in the Pakatan Harapan manifesto that punished acts of free speech, including the Sedition Act 1948, Prevention of Crime Act 1959, Universities and University Colleges Act 1971, National Security Council Act 2016, provisions of the Penal Code 1997 on peaceful assembly and activities harmful to democracy, Security Offences (special measures) Act 2012, Peaceful Assembly Act 2012, and the Prevention of Terrorism Act (POTA) 2015. Similarly, the Centre for Independent Journalism called on the government to implement a moratorium into investigations under both the relevant laws, pending their anticipated repeal in the next Parliamentary sitting.

Access Now urges the Malaysian government to re-table the Repeal Bill in Parliament and ensure all steps are taken to have it passed by both houses. We also urge further action by the government on the more widespread reforms that are needed in Malaysia’s press and criminal laws to protect freedom of speech.

 

Help keep the internet open and secure

Subscribe to our action alerts and weekly newsletter

Your info is secure with us.