By Maddie McMahon

The Global Anticorruption Blog’s Maddie McMahon looks at Malaysia’s new anti-fake news bill and whether it could set dangerous new precedents in the country.

Since at least 2016, complaints about “fake news” have become increasingly common all over the world. But “fake news” refers to two separate phenomena. In some cases, “fake news” means stories that are actually untrue (not just distorted, but fabricated, and deliberately disguised to make it appear that they come from a legitimate media outlet rather than a propagandist or troll). Shanil posted about the dangers that this sort of fake news poses to anticorruption efforts last December. But politicians, notably President Trump, have appropriated the “fake news” label and applied it to any coverage that they deem unfavorable or unfair, even when the news comes from a legitimate media outlet and there is no credible argument that the story is a deliberate fabrication.

The conflation of these two kinds of “fake news” is dangerous, not least because concerns about the former may provide politicians with a pretext for suppressing the latter. Case in point: in April, Malaysia enacted a new law—the Anti-Fake News Bill—that purports to criminalize fake news. The purpose of the new law, which gives the government has the power to prosecute those who create or spread “fake news” with jail terms of up to six years and fines up to about $123,000, seems to be giving the government more authority and discretion to stamp out unflattering news. Other Southeast Asian countries such as Singapore and the Philippines are considering similar measures.

While the anticorruption community should fight against corrupt actors using fake news to spread false stories, it should also resist efforts of governments to misuse the “fake news” label as a pretext for more extensive regulation of legitimate media and free speech. Censorship laws like Malaysia’s reduce transparency and scrutiny, and ultimately hurt anticorruption efforts by entrenching corrupt, illiberal governments.

On its face, Malaysia’s new law defines “fake news” very broadly—it 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 any other form capable of suggesting words or ideas.” The law does not further define what’s considered “false,” leaving that up to the discretion of those enforcing the bill. This gives the Malaysian government broad discretion to suppress criticism. It seems that someone who uses words “suggesting” information that is deemed “partly false” could be subject to years of imprisonment. The law also imposes criminal liability on anyone who was “to any extent responsible for the management of any of the affairs of the body corporate [that creates or spreads fake news] or was assisting in such management.” Therefore, anyone who is even indirectly related to someone communicating what the government deems “fake news” could be held liable. It’s easy to apprehend the chilling effect that such a law would have on those tempted to criticize the government, powerful politicians, or their families or allies. Moreover, the law has extra-territorial reach: it applies as long as the “news concerns Malaysia or the person affected by the commission of the offence is a Malaysian citizen.” Thus the law could deter activists and journalists working outside Malaysia’s borders.

So far, authorities have used the law to convict one individual, who posted a YouTube video accusing police of taking 50 minutes to respond to the killing of a Palestinian lecturer, when the police insisted it took them only eight minutes. Further, the man was fined about $2,500, but couldn’t pay so instead is spending a month in jail. The conviction is concerning because it seems to be aimed at scaring anyone who criticizes the government—something that could turn far worse if an individual wanted to use a social media platform to speak out against government corruption.

The new law’s proponents argue that it will protect individuals and businesses from the online spread of misinformation. But while the spread of fake news in the original sense of fabricated stories is a legitimate concern, both for anticorruption activists and more generally, what seems to be random enforcement coupled with such a harsh penalty does not address the broader “fake news” problem. Moreover, Malaysia had already criminalized the dissemination of “false news” and “false communications” under its Printing Presses and Publications Act and its Communications and Multimedia Act, respectively. It seems more likely that the new law—which was rushed through the Parliament—was intended to give then-Prime Minister Najib Razak an advantage by suppressing speech critical of the government ahead of the elections on May 9—elections which were widely seen as a referendum on the Prime Minister, who has been implicated by Malaysia’s 1MDB corruption scandal (covered on this blog here and here). Najib’s coalition ultimately lost the election anyway. But the Fake News law remains on the books, and will give the current and future Malaysian government excessive power to stifle criticism. Worryingly, this law could give governments in other countries a blueprint to follow to easily censor opinions or commentaries they don’t agree with. This is a troubling step that should be strongly opposed by the anticorruption community.

This blog was originally published on GAB | The Global Anticorruption Blog Law, Social Science, and Policy and was republished with permission. 

Disclaimer: The ideas expressed in this article reflect the author’s views and not necessarily the views of The Big Q.