BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
A CRYPTICALLY-TITLED Anti-Fake News law is about to be enacted shortly if passed by Parliament. The outcry against it stems from its overbroad scope.
First, it goes beyond “news”. Its coverage is extraordinarily overreaching. It covers everything spoken, written, drawn, audio and visual – and the catch-all: “in any other form”. It covers words and ideas, too. It extends to publications and reproductions; and anything in digital or electronic form and replications of these. Every information is roped in – regardless of its scientific, literary or artistic value. Nothing is left out.
Second, it extends to even part of any such depiction – no matter how small or insignificant it may be.
Third, it extends to any person – a Malaysian or a foreigner; and reaches to all parts of the world – if anything is said of Malaysia or a Malaysian citizen.
“Fake” is equated to false – which is not defined. The police and the attorney-general will have absolute discretion to decide who to investigate and charge.
A series of illustrations are given as to when a person may be guilty of an offence. One such says that “A” will be guilty if at a ceramah he or she alleges that someone has misappropriated money collected for a charitable purpose – knowing that the information was false.
On cue, the deputy communications and multimedia minister said that any news on 1MDB that is not verified by the government is considered fake news. And that “the government views that other than the information that has been verified by the government, all other information is deemed as fake news.”
Journalists, academics, social commentators can feel the chilling effect of this pronouncement. The punishment: fine of RM500,000 or a jail term of up to 10 years. And a continuing fine of up to RM3,000 per day for as long as the article remains. The convicted person can be ordered to apologise to the “affected” person. Else he could be punished for contempt.
There is more. Anyone financing the publication/depiction is also guilty. And all are under a duty to remove the publication.
How will the offence be proved in court when a person is charged? Who determines whether the “news” is true or false? The law provides no criteria. Will the government’s subjective say-so prevail in court? How will a person establish that he did not know of the falsity of the information? Is he expected to thoroughly investigate everything that appears on the internet?
Take a current example. Civil society is insisting on the repatriation of funds seized from Swiss banks for involvement in laundering 1MDB funds. The Malaysian government says the millions have nothing to do with 1MDB. Will the NGOs be guilty of fake news – under the new law?
Especially since the Malaysian Communications and Multimedia Commission declares what is false on their webpage, sebenarnya.my, as it did for an article in the Economist which described the Election Commission’s delineation exercise as manipulation favouring the ruling party. Under the new law, anyone not removing this article will also be guilty of an offence. What of people challenging the value of the GST? Fake?
Now, any law that is overbroad or vague is unconstitutional – as declared by courts in India, Canada and the US. This is because citizens will not know what really constitutes a crime when they are writing or passing on articles – especially in this age of the internet. Also, the authorities can exercise uncontrolled discretion and decide who to selectively prosecute.
The fundamental right to freedom of speech can be restricted only on specific grounds relating mainly to national security, public disorder or morality. The Anti-Fake News law makes no reference to any of these grounds as a basis for the offence. This, ruled a 2015 decision of the Indian Supreme Court, is unconstitutional. It defies the public interest.
And what of the established defence available to the media in the interest of the freedom of the press to let the public know of matters of serious public concern – even if the story turns out to be false. Provided it practises responsible journalism – meaning it is not acting maliciously and has reasonably checked the information.
There is an excessive barrage of laws being unleashed. Some even overlap.
The Communications and Multimedia Act (CMA) criminalises online communication that is false (with intent to annoy, abuse or threaten or harass another person). Its constitutionality is being challenged in our courts.
The Penal Code punishes the dissemination of false information.
The Printing Presses and Publications Act criminalises the malicious publication of false news.
History is replete with examples of the widespread rejection of odious laws that overreach and impair the public interest. Gandhi led the Indians to defy the British law banning Indians from producing salt for their food needs. That marked the beginning of the liberation of India.
How many prosecutions will there be under our new law – of people using the internet/WhatsApp/twitter/Instagram not knowing if and when their action is criminal? Under the CMA a large number of persons have been hauled up. How will our courts be taxed? And viewed if prison terms are dished out? How many prisons to house the convicted? And will the rule of law be irreparably bruised?
Forgetting my English, as did Lewis Carroll’s Alice in Wonderland: “Its getting curiouser and curiouser!”
Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKAM.