(Apr. 19, 2018) The Anti-Fake News Act 2018 was published in the Federal Gazette of Malaysia on April 11, 2018, coming into effect that day. (Anti-Fake News Act 2018 (Act 803), Federal Gazette website.) The Act was passed by the Malaysian Parliament on April 4 and received Royal Assent on April 9.
The Act defines “fake news” as including
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. (Id. s 2.)
Section 4 of the Act sets out the offense of “creating, offering, publishing, etc., fake news or publication containing fake news,” stating that
[a]ny person who, by any means, maliciously 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 five hundred thousand ringgit [about US$128,575] or to imprisonment for a term not exceeding six years or to both, and in the case of a continuing offence, to a further fine not exceeding three thousand ringgit [about US$771] for every day during which the offence continues after conviction. (Id. s 4.)
During the debate in the Parliament, the word “knowingly” was changed to “maliciously” in this section, and the penalty was reduced from a maximum of ten years of imprisonment to six years. (G. Surach, Its [sic] Official, the Anti-Fake News Act 2018 Comes into Force Today, SUN DAILY (Apr. 11, 2018).)
The Act provides for the extraterritorial application of this offense, stating that where an offense is committed by any person, whether a Malaysian citizen or not, outside of Malaysia, and where the fake news concerns Malaysia or affects a Malaysian citizen, it may be dealt with as if it was committed within Malaysia. (Anti-Fake News Act 2018, s 3.)
The Act also enables people affected by the publication of fake news to apply for a court order requiring the removal of the publication. (Id. s 7.) The government is able to make such an application, and the Act provides that where a person is subject to an order obtained by the government in relation to a publication that is prejudicial, or likely to be prejudicial, to public order or national security, he or she cannot apply for the order to be set aside. (Id. s 8(3).) Where a person does not comply with a removal order, the police can be authorized by the court to “take the necessary measures to remove such publication.” (Id. s 9(1).)
Rationale for the Act
In a set of questions and answers, the minister in the Prime Minister’s Department with responsibility for the bill, Azalina Othman, stated that
[t]he issue of dissemination of fake news is a global problem, following the technological communication revolution, which is happening at a rapid pace. Of late, Malaysia has faced numerous challenges as an effect from fake news which not only confuses the public but can also threaten the safety, economy, prosperity and well-being of the people and the country.
. . . .
We have to understand that although there are relevant laws, but until today, the rapid and complex development of communications technology means the problem still cannot be managed effectively. What [sic] more, these laws, such as the Penal Code, Printing Presses and Publications Act 1984, and Communications and Multimedia Act 1998, were drafted during or before the 1990s, and could not address the nature of increasingly complex offences in line with rapid technological progress. (Nazura Ngah, FAQs: What You Need to Know About the Anti-Fake News Bill 2018, NEW STRAITS TIMES (Mar. 26, 2018).)
She stressed that there were no existing laws directly related to fake news, and that other countries had also realized that “fake news is a global threat to the world of information, and needs to be tackled swiftly and effectively,” with the Philippines also having drafted a bill on the issue. (Id.) She also said that the government had decided to “allow a neutral and fair party, which is the courts, to decide, which is by due process of law. The courts will have the power to rule on the disposal of any publication deemed to contain fake news.” (Id.) In response to criticism of the bill, she said that the claim that it would curtail freedom of speech is “unsubstantiated and politically-motivated” and highlighted other actions of the government that had furthered the right to free speech in the country. (Id.)
Application of the Act
Police in Malaysia have reportedly already started to apply the new Act, with an investigation being initiated in mid-April 2018 in Johor Bahur regarding “a hoax claiming that the Johor Crown Prince Tunku Mahkota Johor Tunku Ismail Sultan Ibrahim would be footing the bill of shoppers at several supermarkets in the state.” (Ibrahim Isa, Hoax Over TMJ’s Cash Giveaway 1st Case Probed Under Anti-Fake News Law, NEW STRAITS TIMES (Apr. 13, 2018).)