FAKE news has proliferated to a larger audience than before in this digital era, especially with the rise of social media and direct messaging platforms.
Subsequently, the previous government introduced the Anti-Fake News Act (AFNA) to tackle the spread of fake news, which led me to wonder — don’t we have existing laws to curb this, or are the laws not sufficient enough?
(Last September, the Dewan Negara rejected the Anti-Fake News (Repeal) Bill 2018 (Repeal Bill), which was passed by the Dewan Rakyat in August.
Fake news is defined as subject matter that includes news, information, data and reports that are wholly or partly false. AFNA, which came into effect April last year, provides for certain offences and measures to curb the dissemination of fake news which threatens the country’s security, economy, prosperity and well-being of the people. The act, however, does not prescribe the criteria or the threshold to determine what is considered false. This is left to judicial interpretation.
According to AFNA, fake news is interpreted in the form of features, visuals, or audio recordings or in any other form capable of suggesting words or ideas, media neutral and covers print and online media alike. This broad definition of fake news “exposes the law to abuse by the government to suppress dissent”.
Individuals responsible for creating or circulating fake news are subjected to severe sentences of up to six years’ imprisonment and astronomical fines.
Human rights advocates and politicians have criticised the law because it undermines freedom of expression.
In principle, any law that constrains the flow of information hinders free speech. With existing laws such as the Penal Code, Printing Presses and Publications Act 1948 and the Communications and Multimedia Act (CMA) 1998, AFNA is irrelevant.
The Penal Code, for example, codifies most criminal offences and procedures.
This includes articles such as Article 500 which provides the punishment for defamation, Article 501 (for printing or engraving that is defamatory) and Article 502 for the sale of printed or engraved substance containing defamatory matter.
Next, the Printing Presses and Publications Act (PPPA) spans fundamental concepts, such as “the freedom of the press” a wide range of ordinary laws covering defamation (civil and criminal), sedition, contempt of court (civil and criminal), blasphemy, copyright, plagiarism, privacy, confidentiality and censorship, broadcasting, cinematography, and advertising. The laws help to sustain press freedom by guaranteeing it in Article 10 Clause (1) of the Federal Constitution, which states that, “Every citizen has the right to freedom of speech and expression”, but it is subjected to Clauses (2), (3) and (4)”.
As for the Communications and Multimedia Act, it reminds Malaysian journalists and social media activists that whilst they are free to write what they wish, they are always subject to restrictions and limitations. On top of that, new media journalists should take note that whilst they need not comply with the PPPA, they are subject to the CMA, especially Section 211 (prohibition on offensive content) and Section 233 (improper use of network facilities or network service). Thus, as long as Article 10 remains in force, so do the limitations and restrictions.
I find AFNA redundant. It lends credence to the claims by certain politicians that the previous government had “used Parliament” to make laws for personal benefits in policing the “truth”, but it does not protect the people. What the previous government should have done was to improve the existing laws. Additional laws that are not necessary would only result in more work for the courts and police, and increase costs (for the government).
The right approach to curb the spread of fake news would be to educate the people about verifying any information they read or receive, and not restrict the information given to them. People are constantly exposed to both sides of the story. What is even more important now is to know how to guard ourselves against fake news and to seek out the right sources to gain credible information.
The writer is a senior partner of a private legal firm