September 2024
With the rapid progression of the digital age, digital based media has emerged as our main source of information. However, this has concurrently fostered a breeding ground for the proliferation of fake news.
The sudden emergence of the Covid-19 pandemic has thrust the impact of fake news dissemination into the spotlight, expediting global development of legislations to address the issue.
Malaysia was no different when it introduced the Emergency (Essential Powers) (No.2) Ordinance 2021 containing, among others, provisions to restrict the dissemination of fake news relating to the Covid-19 pandemic, notwithstanding that the same reinstated a substantial portion of the repealed Anti-Fake News Act 2018 that was heavily criticized.
Post pandemic and with the revocation of the Emergency (Essential Powers) (No.2) Ordinance 2021, Malaysia has since fallen back to the same legal position of more than two decades ago. It raises concerns as to whether our laws are sufficient in addressing the mounting issues in the digital world.
A. Existing Legislation Governing the Publication of Fake News
The prevention against fake news in Malaysia is generally governed under the Communications and Multimedia Act 1998 (“CMA 1998”).
Section 211(1) of the CMA 1998 prohibits a service provider and other person using a content application service from providing content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.
Section 233(1)(a) of the CMA 1998 provides that a person who by means of any network facilities or network service or applications service knowingly makes, creates or solicits and initiates the transmission of, any comment, request, suggestion or other communication which is among others, obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person, commits an offence.
Both sections 211 and 233 of the CMA 1998 respectively provide that any person who contravenes either of the above will be liable for a fine not exceeding RM50,000 or imprisonment for a term not exceeding 1 year or to both.
Apart from the CMA 1998, the Penal Code also criminalizes the publication of fake news under section 505(b), which provides that “whoever makes, publishes or circulates any statement…with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility…”.
A contravention of this section will attract criminal liability, unless the publisher can show that he/she had reasonable grounds to believe that what was alleged to be “fake news” was true and was made without the intention of causing fear or alarm to the public.
Public opinions on the existing legal framework to curb the circulation of fake news online have varied on a wide spectrum. There have been calls, for instance from the co-founder of the Global Risk Journalism Hub, Associate Prof Dr Sara Chinnasamy for a need to improve existing laws that regulate new media for the spreading of fake news to keep pace with current technological developments.1 Conversely, the Human Rights Commission of Malaysia (SUHAKAM) has reminded the government that the existing laws including CMA 1998 and Penal Code should not be too far reaching so as to curtail the freedom of speech.2 A senior legal practitioner in Malaysia has also propose that the focus should be on educating the public to verify information they read or receive and to not restrict their access to information.3
B. How Other Countries Thwart the Spreading of Fake News
Looking from a global perspective, despite immense criticisms, there is a general trend of increasingly strict governance over the spreading of fake news. 4
For instance, Thailand has amended their Computer Crime Act in 2017 to equip the government with the ability to clamp down on anyone propagating information it deems ‘false’. The amended legislation mandates the appointment of a computer data screening panel, which monitors the internet for “fake news” or specifically computer data that are circulating contrary to “peace and order or good morals”. The Minister may, with the approval of a computer screening panel, authorise legal action to terminate circulation of the data or delete the data from computer systems.5
Germany’s Network Enforcement Act (“NetzDG”) came into effect in 2018 to combat hate speech and fake news in social networks. The NetzDG obligates social media networks with 2 million or more registered users in Germany to remove contents that are ‘clearly illegal’ within 24 hours after receiving a user complaint. If the illegality of the content is not obvious on its face, the social network has seven (7) days to investigate and delete it. A social media network may be fined up to 50 million euros for noncompliance. In 2021, the NetzDG was further amended to expand the powers of the Federal Office of Justice, which includes amongst others, issuing of fines, and to supervise compliance with the Act.6
Singapore enacted the Protection from Online Falsehoods and Manipulation Act (“POFMA”) in 2019. It bans the spread of what the government decides are false statements against the public interest. A person found guilty of doing this in Singapore could be fined heavily and/or jailed for up to five (5) years. It also bans the use of fake accounts or bots to spread fake news – this carries penalties of up to S$1m and a jail term of up to 10 years.7
C. Anti-Fake News Act 2018 (“AFNA 2018”)
On a recap of Malaysia’s failed initiative on the short-lived AFNA 2018, the Act was heavily criticized by amongst others, the then President of the Malaysian Bar,8 to be a grave threat to the freedom of expression and a recipe for the abuse of powers.
Critics believed that the AFNA 2018 was meant to suppress public dissent and was politically motivated,9 underlined by a perceived hastily and ill-conceived introduction, the intentionally loose and ambiguous definition of fake news and the lack of justification of the hefty fines and lengthy imprisonment terms.10 The Act was eventually repealed in October 2019.
D. Conclusion
The future development of the law governing fake news in Malaysia seems to be at a crossroads. The Government will have to balance upholding the right to the freedom of speech and expression under Article 10(1) of the Federal Constitution whilst avoiding a repetition of the failure of the AFNA 2018.
As at 27 September 2023, the Malaysian Minister for Communications and Digital announced that the Government has no plans to reinstate the AFNA 2018, but is instead considering a revision of the CMA 1998.11 There is no further detail revealed as of the time of writing.
However, having regard that the current Government comprises a substantial number of members of the same political party which had previously voted to repeal the AFNA 2018, suffice to say that the future of regulating against the dissemination of fake news is in murky waters.
This material is for general information only and is not intended to provide legal advice. If you have any queries regarding the above, please feel free to contact us at insights@chooi.com.my.
- Bernama, “Fake news spreaders deserve heavier penalty” (Official Portal Ministry of Communications, 19 May 2023)
<https://www.kkd.gov.my/en/public/news/23980-fake-news-spreaders-deserve-heavier-penalty> - Suhakam (Human Rights Commission of Malaysia), Press Statement para 4 <https://www.suhakam.org.my/wp-content/uploads/2020/05/Press-Statement-No.-14-2020_SUHAKAM-Commemorates-World-Press-Freedom-Day.pdf>
- Nurul Hafidzah Hassan, “The Anti-Fake News Act is irrelevant” New Straits Times (21 February 2019) <https://www.nst.com.my/opinion/columnists/2019/02/462486/anti-fake-news-act-irrelevant>
- Reporting by Fathin Ungku; Editing by Clarence Fernandez; and Joe Brock “Factbox: ‘Fake News’ laws around the world” Reuters (2 April 2019) <https://www.reuters.com/article/idUSKCN1RE0XH/>
- Robert Smith, Mark Perry, ““Fake News” Legislation in Thailand: The Good, the Bad and the Ugly” (2020) Athens Journal of Law – Volume 6, Issue 3, 247, 248
- Gesley, Jenny, “Germany: Network Enforcement Act Amended to Better Fight Online Hate Speech” Law Library of Congress (Germany, 6 July 2021) https://www.loc.gov/item/global-legal-monitor/2021-07-06/germany-network-enforcement-act-amended-to-better-fight-online-hate-speech
- Tessa Wong, “Singapore fake news law polices chats and online platforms” BBC (Singapore, 9 May 2019) <https://www.bbc.com/news/world-asia-48196985>
- George Varughese (Malaysian Bar), Press Release, “Withdraw the Anti–Fake News Bill 2018” (Malaysian Bar 27 March 2018) <https://www.malaysianbar.org.my/article/news/press-statements/press-statements/press-release-withdraw-the-anti-fake-news-bill-2018>
- Hannah Beech, “As Malaysia Moves to Ban ‘Fake News,’ Worries About Who Decides the Truth” The New York Times (2 April 2018) <https://www.nytimes.com/2018/04/02/world/asia/malaysia-fake-news-law.html>
- Moonyati Mohd Yatid (Institute of Strategic and International Studies (ISIS) Malaysia), “Truth Tampering Through Social Media: Malaysia’s Approach in Fighting Disinformation & Misinformation” (January 2009) Volume 2. 220
- “Govt has no plans to reinstate Anti-Fake News Act, says Comms Minister” The Star (27 September 2023) <https://www.thestar.com.my/news/nation/2023/09/27/govt-has-no-plans-to-reinstate-anti-fake-news-act-says-comms-minister>