BY PHILIP TN KOH
“Serious questions arise as to whether this Bill is constitutional when read with Article 10 of our Federal Constitution which characterises free speech as a fundamental liberty subject to limited restrictions. Whether this Bill will pass the constitutional test will await judicial contestations. This Bill, while intended to rein in proliferation of fake news, will have a chilling effect on free speech and expression, which is the vital blood of deliberative democracy.” – Philip Koh
IN the wake of Facebook’s expression of regrets and the expose of the Cambridge Analytica, nations have moved swiftly to deal with what has been characterised as “fake news”.
Nation states have a legitimate right to defend their sovereignty by recourse to laws. However, there is growing evidence that governments or government sponsored agents have also used fake news to promote and defend its interests, as against the healthy exercise of political discourse and debates.
The Anti-Fake News Bill proposed by the Malaysia government raises many questions.
The definition of “fake news” reads, “includes any news, information, data and reports, which is or are wholly or partly false, whether in the form of features, visuals or audio recordings or in any form capable of suggesting words and ideas”.
The breadth of this definition effectively covers all forms of speech and expression.
The offence is again defined with an expansive breadth that “any person who by means, knowingly creates, offers, publishes, prints, distributes, circulates or disseminates any fake news or any publication containing fake news commits an offence”.
The penalties prescribed are severe. A person found to have committed the offence is liable to a fine of up to RM500,000 or imprisonment for a term not exceeding 10 years or both.
The court may also order the convicted person to make an apology in a manner determined by the court. Failure to comply will be deemed contempt of court.
A number of illustrations are set out under Clause 4(3) sketching out the offences. They are a mixture of prohibitions against political speeches which contain allegations of corruption against individuals and also commercial falsehoods against businesses.
An example is illustration (g) – A gives a speech during a public forum held at a public place. In his speech, A informs that Z misappropriated moneys collected for a charitable purpose knowing that the information is false. A is guilty of an offence under this section.
There are further offences of provision of financial assistance to facilitate commission of fake news offence.
This will send a chill down the spine of all news media owners.
The power to decide on prosecution lies with the Public Prosecutor.
The corporate veil is also lifted in that if a body corporate commits an offence, a person who is director, chief executive officer, manager, secretary or similar officer responsible for management of the affairs of the body corporate or assists in such management, may be charged jointly and severally with the offence.
Such a person may exonerate himself if he can prove that the offence was committed without his consent or connivance and that he had taken reasonable precautions and due diligence to prevent the commission.
Serious questions arise as to whether this Bill is constitutional when read with Article 10 of our Federal Constitution which characterises free speech as a fundamental liberty subject to limited restrictions.
Whether this Bill will pass the constitutional test will await judicial contestations. This Bill, while intended to rein in proliferation of fake news, will have a chilling effect on free speech and expression, which is the vital blood of deliberative democracy.
Philip Koh is co-editor of Sheridan & Groves fifth edition of The Constitution of Malaysia. The views expressed here are entirely his own.