Is 'fake news' as serious a crime as kidnapping or waging war? Lawyers ask

A billboard advertisement discouraging the dissemination of fake news is pictured along Jalan SS20/27, Damansara Jaya March 26, 2018. — Picture by Azneal Ishak
A billboard advertisement discouraging the dissemination of fake news is pictured along Jalan SS20/27, Damansara Jaya March 26, 2018. — Picture by Azneal Ishak

KUALA LUMPUR, March 27 ― Putrajaya's proposed new law appears to treat “fake news” like a serious crime such as kidnapping and waging war against the Yang di-Pertuan Agong, lawyers said.

Expressing alarm, civil rights lawyer New Sin Yew said one of the biggest problems with the proposed law was its “excessive punishment”, referring to the maximum fine of RM500,000 or maximum 10-year jail term or both for those found guilty of creating, publishing, distributing or circulating “fake news”.

He contrasted the severity of the proposed Anti-Fake News Act 2018's punishment with the penalties for two existing serious offences, including Section 124I of the Penal Code that covers the crime of spreading false reports or making false statements likely to cause public alarm.

“Section 124I of the Penal Code which is considered as ‘offences against the state’ (such as terrorism, waging war against the YDPA, espionage) is only punishable with imprisonment not exceeding five years. The offence of kidnapping under Section 367 of the Penal Code is punishable with imprisonment not exceeding 10 years.

“By imposing such a severe punishment, is the government saying that publishing ‘fake news’ is as serious as kidnapping? Or more serious than an ‘offence against the state’?” he asked when contacted by Malay Mail yesterday, also saying that it was usual for the same punishment to be imposed on those who are convicted of abetting a crime.

Constitutional lawyer Lim Wei Jiet said the proposed punishment for publishing fake news is “too severe”, describing it as “extremely pernicious and disproportionate in a constitutional democracy”.

“Currently, the government machinery and media can easily counter any fake news and individuals can sue others for defamation to vindicate their rights ― there is simply no necessity for such an autocratic legislation,” he told Malay Mail when contacted.

Lim also commented on all offences in the proposed anti-fake news law being treated as “seizable offences”, or offences where no warrants are needed for arrests.

“It does appear disproportionate that an 'offence' (where there is no real or imminent danger to the safety of society) is categorised as a 'seizable offence' in the likes of murder, kidnapping and more serious crimes,” he said.

Lawyer Surendra Ananth, who co-chairs the Bar Council's constitutional law committee, said the Bill ― which criminalises those providing financial assistance or aiding alleged fake news offences ― “puts into doubt the status of fund raisers for campaigns and persons convicted under the law” and could arguably also affect subscribers of news portals.

He noted that restriction on free speech must be proportionate to the harm sought to be addressed.

He said that there is no apparent harm and that citizens “should be allowed to make their own choice in an age where verification can be done easily”, adding that the punishment is still excessive even if there is any harm.

Law covers offences outside Malaysia?

As for the proposed law's Section 3 where a fake news-related offence committed abroad by a Malaysian or foreigner will be treated as having been committed in Malaysia, if the fake news is about Malaysia or affects a Malaysian, lawyers said this was allowed and had been done before.

“Yes, international law, though controversially, permits this through the passive nationality principle, i.e. states have jurisdiction over non-citizens abroad if the concerned activity affects the state. Active nationality allows states to have jurisdiction over their own nationals abroad,” Surendra said.

Lim said there is legal precedent in other laws for this feature, noting that the Anti-Fake News Bill 2018 is similar to the Sedition Act and Official Secrets Act which have extra-territorial effect.

“Nonetheless, it is only reserved to very heinous and serious offences which could threaten the nation even when done outside the country ― hence the extra-territorial application which extends to acts done overseas,” Lim said.

New said the extra-territorial clause in the Anti-Fake News Bill is also stated in the Penal Code.

“There is nothing new with extra-territorial application of certain offences, it is valid. Even Section 124I of the Penal Code applies extra-territorial.”

Lawyers for Liberty's executive director Eric Paulsen said this clause would make it possible for foreign press or commentators to be targeted and punished for not toeing the official line in reports on controversial issues on Malaysia.

“It should be noted that extra-territorial jurisdiction is not unusually invoked, save for extremely serious crimes like piracy and terrorism,” he said.

Weighing in on the Bill's Section 7 which allows an affected person to apply unilaterally for a court order to remove “fake news”, Paulsen said it would mean that the judge could decide on whether a news article or blog post is fake and should be removed without requiring a news outlet or blogger to be represented then.

He added that Section 7 is an “unfair and dangerous provision that can easily be misused to silence or harass adverse publications”.

Under that section, failure to comply with a court order to remove fake news is punishable with a maximum RM100,000 fine.

Ouster clause

Surendra noted that the Bill's Section 8(3) seems to operate as an ouster clause to prevent the courts from setting aside orders to remove publication of “fake news” if it concerns public order and national security.

“This is also unconstitutional. The court's jurisdiction to address a wrong cannot be excluded,” he said.

Paulsen said that this clause's barring of applications to set aside a court order for removal of “fake news” if it is linked to public order and national security would leave the publisher with “no recourse”.

In a seven-point Frequently Asked Questions (FAQ) issued by the government, it said that the Anti-Fake News Bill is intended to send the message that the government would not compromise when it comes to tackling fake news that may threaten public peace or national security, adding that it is meant to deter and let the public know that they are responsible for sharing true information.

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