This article first appeared in The Edge Financial Daily on March 27, 2018

KUALA LUMPUR: The government is clamping down on fake news that confuses the people and threatens the country's security, with a proposed punishment of up to 10 years' jail. However, the move has attracted criticism and is perceived to further restrict press freedom in the country.

Minister in the Prime Minister's Department Datuk Seri Azalina Othman Said made the first reading for Anti-Fake News Bill 2018 in Dewan Rakyat, outlined offences and Session Court’s power to order removal of the publication of fake news.

According to the tabled bill, the offences include creating, offering and publishing fake news or publication containing fake news; providing financial assistance for purposes of committing or facilitating commission of such an offence; and failure to carry out duty to remove any publication containing fake news.

The bill defines fake news as "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 other form capable of suggesting words or ideas".

"Any person who, by any means, knowingly creates, offers, publishes, prints, distributes, circulates or disseminates any fake news or publication containing fake news commits an offence and shall, on conviction, be liable to a fine not exceeding RM500,000 or to imprisonment for a term not exceeding 10 years or to both, and in the case of a continuing offence, to a further fine not exceeding RM3,000 for every day during which the offence continues after conviction," the bill read.

Additionally, the court is empowered to order the person convicted of an offence to make an apology to the person affected by the commission of the offence in the manner determined by the court, failure to do so shall be punishable as a contempt of court.

When contacted, civil liberties lawyer Syahredzan Johan told The Edge Financial Daily that the bill is drafted in an ambiguous manner and there are possibilities that the law will be abused upon being gazetted.

“The bill said fake news is that which is ‘wholly or partly false; how do you establish what is false and true? The law seems to be a tool for those in power to control information, because based on what is happening today, they seem to have lost control of information,” he said.

“Currently, one has to prove himself or herself to be affected by fake news; with this new law, anyone can lodge a complaint, and it will then be up to the court to evaluate,” he added.

In a Facebook post yesterday, Syahredzan said the bill will be the “death knell” for satire and parody as the nature of such works is that they are at least partially “false”.

“There is a clause on giving financial assistance to those who commit a fake news offence. It means that those who contribute to crowdsourcing or fundraising campaigns to pay off fines or damages may also be liable. There is also the possibility that this will be used to go after those who pay subscription to news portals like Malaysiakini, or those who advertise on certain portals or dailies,” he said.

“There are other aspects of the bill which are deplorable; I am just touching on some aspects,” he added.

PKR Bayan Baru lawmaker Sim Tze Tzin explained that the government will have the power to decide the truth by deciding to prosecute or not if the law takes effect.

“Some civil case like spreading false news can now be prosecuted as criminal case. Will this be perceived to be too heavy-handed? Most fake news can be sued through civillian court for defamation. Through court process, truth will prevail. We know most corruption cases were leaked by whistle-blowers. These were deemed fake news at the beginning before they were proven to be true,” he added.

Case in point is 1Malaysia Development Bhd, he noted. Sim questioned whether this law deters whistle-blowers from exposing wrongdoings.

Back on the bill, it also provides extraterritorial application, meaning even if the offence is committed at any place outside Malaysia, it will be dealt with as if the offence has been committed within Malaysia.

In its explanatory statement, the bill states that the Anti-Fake News Act 2018 seeks to deal with fake news by providing for certain offences and measures to curb the dissemination of fake news.

“As the technology advances with time, the dissemination of fake news becomes a global concern and more serious that it affects the public. The proposed Act seeks to safeguard the public against the proliferation of fake news whilst ensuring the right to freedom of speech and expression under the Federal Constitution is respected,” it read.

“The provision on the power of the court to make an order to remove any publication containing fake news serves as a measure to deal with the misuse of publication medium in particular the social media platforms. With the proposed Act, it is hoped that the public be more responsible and cautious in sharing news and information,” it added.