How to not draft a Fake News Law

                Jumping on the Donald Trump ‘fake news’ bandwagon, Law Minister Azalina Othman announced on 30 January 2018, the formation of a special committee to look into new legislation to curb fake news that could threaten political stability, public order and national security. Her announcement came on the heels of comments by Prime Minister Najib Razak on the necessity of introducing a fake news law as people could be instigated to hate the government or cause uprising due to being influenced by fake news.

                Merely two short months later, the special committee, made up of representatives from the police, Attorney-General’s Chambers, Prime Minister’s Department, National Security Council, Malaysian Communications and Multimedia Commission, and Communications and Multimedia Ministry, produced this monstrosity called the Anti-Fake News Bill 2018 that was tabled in Parliament last Monday. Thus far, government ministers have rallied to the support of the Bill, insisting that it should be passed as fake news affects all and those who are innocent have nothing to fear from the law.

                Had the opposition and civil society been genuinely consulted in the drafting of this Bill, or appointed to be part of the special committee, it wouldn’t have turned out the way it did – ill-defined, unworkable and disproportionate to the alleged threat of fake news.

                Although I am loath to cite Singapore as an example of legislating done right as after all, it remains one of the most restrictive countries in the world, however, one can note how the government has gone about tackling fake news. Home Affairs and Law Minister K. Shanmugam announced the intention of the government as far back as June 2017, and in January 2018, tabled a 19-page Green Paper in Parliament.  The paper titled ‘Deliberate Online Falsehoods: Challenges and Implications’ sets out how fake news had affected other countries in the world, the steps those countries were taking, and most importantly, why this concerned Singapore and the possible options on the table. This helped in setting the context for discussions in the future, and the next steps that were to come.

                A week on, the Singaporean Parliament agreed to set up a Parliamentary Select Committee (PSC) to study the government’s concerns highlighted in the Green Paper. The PSC then set 8 days of public hearings, with a total of 79 people, including representatives from media groups, civil society, academia, social media and tech companies, who were called to speak before the committee makes its recommendations to lawmakers.

Context is key

                While in Malaysia, there is painfully little context provided other than several vague, sweeping and unsubstantiated statements by the PM and various ministers as to why we require a fake news law as there already exists a plethora of criminal laws currently being used to tackle offensive speeches or communications, such as the Penal Code, Communications and Multimedia Act, Sedition Act and Printing Presses and Publications Act. Defamation is covered by the Penal Code if it is criminal in nature, and also available as a civil remedy.

It is certainly true that in other democracies across the world, Germany, France, and the United States included, fake news laws have been or are in the process of being enacted or debated – but it is necessary to note that the circumstances are different from Malaysia.

                Germany’s Network Enforcement Act, more commonly known as NetzDG, has the dubious honour of being the first fake news law in the world. Often cited as a source of inspiration by other countries looking to form their own laws, it was intended to hold social media platforms accountable for the content that is propagated on their networks. The NetzDG requires social media networks to act quickly to remove hate speech, fake news and obviously illegal material, and is applicable only to networks with more than two million registered users in Germany.

                The NetzDG was enacted with specific goals in mind: to prevent the spread of hate speech and other fake news that could potentially incite racial hatred or public disorder, such as false stories of refugees and migrants raping German girls. Similarly, French efforts to tackle fake news have been largely informed by the experiences of President Emmanuel Macron in the 2017 presidential campaign when numerous false reports claimed that he benefited from offshore accounts.

                In Germany, France, and the United States, there are serious concerns at hand: the possibility of an enemy State (the usual suspect, Russia) wilfully and intentionally subverting their democracies and sowing misinformation amongst their electorate, or parties within who maliciously spread false content to cause disharmony amongst the citizenry. The stakes are genuine, and therefore call for a response by the government lest the country be tipped into public disorder.

                Has Malaysia experienced a similarly sophisticated or serious campaign of public misinformation that has subverted democracy or threatened public disorder? Why, then, is there a need for a fake news law? The answer comes once again from Azalina: in February 2018, she said that the government was giving priority to the proposed fake news law because of the existence of organised groups attempting to spark riots and hatred on a global scale and fears that Malaysia would not be spared.

                The rationale that there exists, out there in the world, some groups that are plotting to instigate riots and hatred in Malaysia and therefore we need a fake news law, beggars belief. In the same spirit of her fake news Bill, Azalina should be able to furnish evidence that these groups exist – and if she is unable, then let us call her flimsy propaganda for what it is: fake news.

Unverified 1MDB news is fake news and the sun rises in the west

                With no clear context provided other than some mysterious threats that the government must protect us from, how can we take this Bill seriously? The Bill is extremely vague and does not define what amounts to fake news, and further infringes upon our freedom of speech under Article 10 of the Federal Constitution. This Bill threatens to make a mockery of this cornerstone of our democratic rights by declaring all news regardless of the content, whether it is serious or trivial, that are wholly or partly false as a crime, unless of course the authorities determine otherwise.

                Further, the Bill places an absurd general burden to remove all publications that could potentially be fake news – wide enough to cover server hosts, forum moderators, WhatsApp chats and Facebook admins. This Orwellian criterion then raises the question of precisely who regulates ‘the truth’, especially given recent comments by Deputy Communications and Multimedia Minister Jailani Johari, that anything other than government-verified news on 1MDB would be classified as fake news. If, tomorrow morning, the government renames the Ministry of Communications and Multimedia as the Ministry of Truth, and declares that the sun rises in the west, would it be a crime to state otherwise?

                This fake news law serves no other purpose than to advance the government’s insidious agenda to stifle the opposition and dissent, and cover-up issues of corruption and abuse of power like 1MDB. If the German NetzDG, so rigorously debated and planned – and in a country where the public institutions are trusted, and opposition politicians are not arrested or hauled to court on the slightest of charges – is already extremely controversial, what more this Bill?

                The Bill must be discarded in its entirety. If the government is truly serious about tackling fake news, it should withdraw the Bill and send it back for genuine consultations with all stakeholders or set up a bipartisan parliamentary select committee and come up with proper mechanisms that address the fake news problem without exaggeration and overreach, while respecting our democratic rights.

By Eric Paulsen, Executive Director of Lawyers for Liberty