In a statement today, Malaysian Bar president George Varughese said it was deeply troubled by the introduction of the proposed legislation yesterday.
“It is the stated intention of the government to have this legislation passed in the current sitting of Parliament, and it will likely be brought into force before the beginning of the campaign period for the 14th general election.
“The drafting of the proposed legislation raises many questions regarding its content, intent and impact,” he said.
“While this issue should not be ignored, the proposed broad-based law to criminalise the dissemination of news amounts to legislative overkill.
“The Malaysian Bar calls on the government to withdraw the proposed legislation from consideration at this current sitting of Parliament, and to convene a proper select committee to look comprehensively and publicly into the issue.
“The government must not legislate in haste.”
What is ‘false’ not defined
The Malaysian Bar highlighted some of controversial points in the law.
Varughese said what is “false” was not defined.
“’False news’ is already criminalised under Section 8A of the Printing Presses and Publications Act 1984 (PPPA). The definition of ‘publication’ in PPPA is not dissimilar to the various definitions in the proposed legislation,” he said.
“A ‘false’ communication is also criminalised under Section 233(1)(a) of the Communications and Multimedia Act 1998.
“As such, these provisions beg the question of why there is any need to create a new law to criminalise ‘fake’ or ‘false’ news.”
Varughese said since the proposed law criminalises “fake news”, but does not clearly define it, it could be used to suppress freedom of expression in the context of expressing views or opinions.
“The wording of the provisions is sufficiently wide for an action to be brought challenging ‘correct’ or ‘incorrect’ views on, for example, economy, history, politics, science and religion.
“Such a law may be far too wide, and could be held to be ultra vires, that is in violation of the Federal Constitution.”
Varughese said the extra-territorial reach of the proposed legislation is, arguably, wider than that of any other law in Malaysia.
“It will apply so long as the ‘fake news concerns Malaysia or the person affected by the commission of the offence is a Malaysian citizen’.
“Therefore, neither the complainant nor the person complained of needs to be physically present in Malaysia for the offence to have been committed.
“Further, a court order to remove the publication can be served ‘by electronic means’, which is not defined but could conceivably include service by email, Twitter, WhatsApp, or other forms of text messaging or social media.”
Varughese said an individual or entity affected by “fake news” can apply to the courts for an ex parte order to remove the news, without even informing the person being complained of.
“Therefore, there is no opportunity to have both parties present in court to argue the veracity of the ‘fake news’.
“The likely procedure is for the Sessions Court to evaluate the complaint and any supporting evidence or documents submitted by the complainant and, if the court decides that the item is ‘fake news’, to grant an order.
“An order can be challenged, but an application to challenge does not operate to suspend or defer the original order, which must still be complied with.
“However, if it is the government that obtains the order, and it alleges that the ‘fake news’ is prejudicial or likely to be prejudicial to public order or national security, and the court agrees, the order cannot be challenged.”
What if government publishes ‘fake news’?
The Bar Council also said the proposed legislation does not deal with a situation if the government publishes “fake news”.
“Looking at what is taking place around the world, this is an omission that needs to be addressed,” Varughese said.
The Bar Council said if the offence is committed by a body corporate, the proposed law allows for criminal liability to attach to its directors and officers, but it can also attach to anyone “to any extent responsible for the management of any of the affairs of the body corporate or was assisting in such management”.
“Thus, for example, if a news reporter writes a story about Malaysia that is held to contain ‘fake news’, the editor or sub-editor of the company employing the news reporter would also be criminally liable.
“Failure to abide by a court order leads to the commission of a criminal offence, which carries a fine of up to RM100,000 and a continuing fine of RM3,000 for each day of non-compliance.
“Such failure also results in a contempt of court, and arrest is allowed under the Criminal Procedure Code.”
Varughese said the many illustrations, in the proposed legislation, of how an offence is committed under the proposed legislation actually involve the issue of civil or criminal defamation — for which Malaysia has adequate legislation and legal procedures.
This again raises the question of why new legislation is required.
“Of serious concern is the fact that publishing a ‘caricature’ can also constitute an offence of ‘fake news’. Parodies and poking fun, which by their very nature may involve some embellishment, would now constitute a criminal offence.”
He said while the use of the word “knowingly” in the elements of the offence denotes a requirement of intention, there is no requirement of malice or ill intent, unlike Section 8A of the PPPA.
“However, there is another offence in the proposed legislation, of failing in one’s duty to remove news, ‘knowing or having reasonable grounds to believe’ that it is ‘fake news’.
“What constitutes ‘knowing or having reasonable grounds to believe’ is not defined. This lack of certainty gives cause for concern.”
Fake social media accounts
Varughese said the real issue of “fake news”, which is what is currently in the minds of many governments around the world, is about the setting up of fake social media accounts.
He said governments were concerned that these fake accounts were used to publish news, of sending tailored messages and influencing outcomes of elections.
However, these matters are not adequately addressed in the proposed legislation, he added.
“Only the issue of funding is dealt with and criminalised in the proposed Section 5.
“Again, other existing legislation already caters for the offence of aiding and abetting the spreading of false news.
“So, this provision does not serve any purpose except for the provision of a huge maximum fine of RM500,000 and/or a heavy maximum jail sentence of 10 years, to act as a chilling deterrent.”
Varughese said previous issues of the prime minister receiving a vast donation prior to the last general election and the presence in Malaysia of a foreign company involved in data analytics and online profiling were being ignored.
“If the government is genuinely concerned about the possibility of foreign funding and foreign influence on the outcome of our upcoming general election, surely it should have focused instead on campaign finance reform, data security, and personal privacy.
“Ultimately, the public is left to ponder the value added by this proposed new legislation.”
Varughese said the intended provisions regrettably enable the government to immediately silence “fake news”, with court orders to be rendered unchallengeable if there is accepted evidence of prejudicing public order or national security.
He said the proposed law intimidated the media and honest practitioners of freedom of expression, who must now be 100% correct in their reporting, postings or statements, or else stand accused of being “partially false”.
He said sensitivities about the reputation of Malaysia by way of negative comments and criticisms can now be attacked through an extremely wide extra-territorial application of the proposed legislation.
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