In April 2018, Article 19 analysed the “Anti-Fake News Act” of Malaysia, which entered into force on 11 April after being published in the Gazette. Article 19 is deeply concerned that it will severely undermine freedom of expression in Malaysia.
The act establishes a totalitarian regime for policing the “truth”, with potential six-year custodial sentences and practically limitless fines.
“Fake news” is ambiguously defined. A person may be imprisoned or fined without the government needing to prove that their expression caused harm to any legitimate interest, or that the person intended that harm to occur.
It essentially grants unfettered discretion to authorities to target expression they dispute the veracity of, or simply do not like. As such, its content-based offences are much broader than those that already exist in legislation like the Sedition Act, the Communications and Multimedia Act or the Penal Code.
The act also co-opts online intermediaries, such as search engines and social media platforms, in addition to administrators or owners of social media pages, into the government’s censorship efforts. Criminal penalties create strong incentives for the removal of content the government may object to, without regard to human rights, and without transparency or due process.
Where a person is “in control of” so-called “fake news”, they must remove so-called “fake news” on notice, and without a court order. Failure to do so “immediately” is criminalised.
In addition, the courts are given sweeping powers to demand private parties, on request of users or the executive, remove entire publications containing “fake news”, with severe fines for non-compliance.
These ex parte proceedings require no consideration of human rights, and in many cases individuals’ content will be removed without their being notified or having any opportunity to make representations, and with appeal rights limited only to the respondent to an order (and not necessarily available for authors or owners of offending content).
On matters pertaining to national security and public order, there is no right to appeal, giving the government broad powers to request removals without the possibility of challenge.
The jurisdictional scope of the act extends beyond Malaysia’s territory, allowing for the targeting of any person or entity if the expression concerns Malaysia or affects Malaysians. The potential impact of the act on freedom of expression is therefore truly global.
The rapid enactment of the act ahead of the general election, without any effective public consultations, raises significant concerns regarding the protection of freedom of expression in Malaysia in the months ahead.
The criminal offences it contains, and the regime of intermediary liability it paves the way for, is likely to have a significant chilling effect on open debate, in particular on criticism of the government, and especially online. As Malaysians went to the polls, they were clearly being told that opposition and criticism would not be tolerated.
Summary of recommendations
- The Anti-Fake News Act should be repealed in its entirety;
- The Malaysian government should comprehensively reform other laws that unjustifiably limit the right to freedom of expression, in particular by repealing the Sedition Act and reforming the Communications and Multimedia Act;
- The Malaysian government should enact legislation to protect online intermediaries, such as search engines and social media companies, from criminal and civil liability for content that third parties create or share on or through their platforms;
- The Malaysian government should ratify the International Covenant on Civil and Political Rights without delay.
Source: Article 19