QUESTION TIME | The proposed new Anti-Fake News Act 2018, tabled in Parliament yesterday, would become the biggest ever threat to press freedom in the country once it becomes law. It not only provides hefty penalties for offenders, it makes it easy to compel so-called fake news to be removed without representation by the publishers.

On top of that, there is an all-encompassing clause which states that if fake news is removed because of national security or public order reasons on an order from the government, there cannot be an application against that order, making in effect the government the final arbiter of what can be published. Any news can be removed at will using the security and public order clause.

The offence for publishing or distributing fake news, defined in Section 2 of the proposed act as “any news or information in any form which is wholly or partly false”, is a fine of not more than RM500,000 or not more than 10 years in prison, or both. Under Section 3 (2) even if the offence is committed overseas, an offender can be dealt with as if the offence was committed in Malaysia. For continuing offence, there is a fine of RM3,000 a day for which the offence continues after conviction.

Abetment of the offence attracts the same punishment while for a corporation, key officers such as director, CEO, manager and secretary may be charged jointly or severally for the offence.

Further, under Section 5, any person directly or indirectly providing financial assistance for the commission of the offence will be subject to the same provisions - fine of up to RM500,000 and prison of up to 10 years, or both. That may include even shareholders of publications, including online news organisations. This is clearly aimed at cutting off financing to news websites.

Section 7 provides that the court can order the removal of fake news ex parte (on the interests of only one party, without the other being represented). The order can be served by electronic means such as e-mail or to a social media account. That makes it easy for involved parties to remove so-called fake news.

Section 8 provides for an application to set aside the order but it will not amount to a stay of the order, which means the report still cannot be used. However, if the order is obtained by the government “relating to a publication containing fake news which is prejudicial or likely to be prejudicial to public order or national security”, there shall be no application for the setting aside of such order. Further, Section 9 empowers the court to order the removal of the publication by a police officer or authorised officer under the Communications and Multimedia Act 1998.

All that make it a major deterrent for investigative reporting or uncovering scandals because a small mistake in reporting could make the entire report false although the whole picture uncovered by the report is basically intact. With such laws in place, even online sites which previously were brave enough to report scandals such as 1MDB will now hesitate. Even if they report, the government can apply to the courts for the removal of the news with no representation from the publishers.

Effectively, the proposed legislation makes it impossible to report on any wrongdoing by the government which can use the legislation to block its publication. As Malaysiakini editor-in-chief Steven Gan said: "Malaysia already has a litany of laws which have been used – and abused – to combat fake news. This new law is more than just another layer of control by the government; it is a death blow to the sliver of democracy that we have.”

1MDB kleptocracy scandal

The proposed legislation is also rather short on how prosecutors can establish that a piece of news is indeed fake. However, schedules indicate that when an application is made for an order for removal of fake news under Section 7, among the documents that should be submitted would be a “certified copy of document proving the publication containing fake news” or “other certified document or evidence supporting this application”.

In relation to the 1MDB kleptocracy scandal, that could well mean a certified copy of the attorney-general saying that no crime had been committed which flies in the face of documented international evidence that says otherwise.

If that is held to be so by the courts, there can be no further reporting of 1MDB and even if a website decides to publish, such news can be removed by a mere court order without the publisher being consulted.

And if that is so, there can also be no other report about other scandals such as Felda and FGV, Mara, National Feedlot Corporation, etc.  Even questioning of the viability and wisdom of contract awards, such as the RM55 billion contract awarded to China companies for the East Coast Rail Line project, might not be possible if someone just attached a certified copy of the consultant’s feasibility report justifying the project in their application to remove so-called fake news.

To further rub salt into an open wound, Section 4 (2) empowers the court to order the person convicted to make an apology to those offended. Failure to comply is punishable as contempt of court which could mean indefinite detention. Imagine, you may have to apologise to Jho Low (photo) for reporting on 1MDB or stay in jail!

Those who fail to remove fake news will face a fine of up to RM100,000 and a further fine of RM3,000, for every day the offence continues after conviction.

Overall, this is a rather insidious piece of legislation which is directly aimed at whatever little press freedom we have, especially in the online space which so far requires no licensing as in print but is still subject to all laws of the country such as the draconian Sedition Act, Prevention of Crime Act (Poca) and the Security Offences (Special Measures) Bill 2012 (Sosma) amongst others.

It masquerades in the form of fighting fake news but is most dangerous of all against truth and fair comment for it gives complete power to the government to determine what is true or what is not, and what is fair, not the courts. That’s definitely bad for the country.

The populace has no business supporting a government which seeks to be the final arbiter of what is true or false and does so at its own peril for it could well mean the ultimate destruction of the last vestiges of press freedom - and accountability - in the country. 

P GUNASEGARAM says that too much power always corrupts. E-mail: t.p.guna@gmail.com.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.