Malaysia: Repeal ‘fake news’ emergency ordinance

Malaysia should immediately repeal a new emergency regulation on ‘fake news’ relating to the Covid-19 pandemic, said ARTICLE 19, the ASEAN Parliamentarians for Human Rights (APHR) and Open Net Association today. The new ordinance draws heavily from the Anti-Fake News Act, a repressive law that was repealed in 2019, and is likely to be used by the government to restrict freedom of expression in a manner that violates international human rights law.

On Friday, the Perikatan Nasional government enacted Emergency (Essential Powers) (No. 2) Ordinance 2021 (the ‘Ordinance’) using powers conferred by a January 2021 Emergency Proclamation. The Ordinance establishes a number of criminal offences relating to ‘fake news’ about the Covid-19 pandemic and the Emergency Proclamation, which was promulgated for the stated purpose of combating the Covid-19 pandemic and is effective until 1 August 2021.The new offences include the creation, publication, or dissemination of so-called ‘fake news’ and the failure to take down publications containing content deemed as ‘fake news’.

The Ordinance was promulgated without parliamentary approval, as the legislative body has been suspended during the state of emergency, leaving the country without democratic oversight for several months. Moreover, that the Ordinance punishes ‘fake news’ relating to the proclamation further raises the risk of suppressing meaningful public discussion on the legitimacy of the proclamation or the political crisis brought on by the suspension of parliament.

The Ordinance draws heavily from the Anti-Fake News Act 2018. It follows the structure of the Act, and many provisions in the Ordinance are identical to those in the Act. In 2018, Malaysian civil society and international human rights organisations, including ARTICLE 19, raised concerns that the Act was incompatible with international human rights law and would be used to censor speech and punish government critics. In October 2019, the Malaysian Parliament repealed the law. Not only does the Ordinance replicate many of the most problematic aspects of the Anti-Fake News Act, it also adds new provisions that raise fresh concerns.

The right to freedom of expression is protected by customary international human rights law. Although it may be restricted in order to protect national security, public order, or other legitimate aims, such restrictions must be prescribed by law and necessary and proportionate to those aims.

In a joint declaration on freedom of expression and ‘fake news’, UN and regional freedom of expression experts stated that broad restrictions on ‘fake news’ do not pass that test, writing that, ‘General prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’, are incompatible with international standards for restrictions on freedom of expression’.

In the past year, ARTICLE 19 has documented how the government has used various law to restrict freedom of expression and harass journalists and human rights defenders in Malaysia. Given the breadth of powers under the Ordinance, it will likely be used to further suppress public discourse and legitimate criticism of public officials and other powerful individuals.

Problematic aspects of the Ordinance include the following:

• The Ordinance is overly vague. It defines ‘fake news’ as ‘any news, information, data and reports which is or are wholly or partly false relating to COVID-19 or the proclamation of emergency, whether in the forms of features, visuals or audio recordings or in any other form capable of suggesting words or ideas’. The breadth of this definition is overbroad in scope, making it incompatible with the requirement of legality for limitations to freedom of expression under international human rights law.
• Penalties for offences under the Ordinance are grossly disproportionate. Punishments include fines of up to 500,000 Ringgit (USD 121,500) and up to six years’ imprisonment. The possibility for compounding punishment for ‘continuing’ violations raises further concerns in the digital age, when content can go viral and become difficult to curtail.
• The Ordinance disregards intermediary liability principles. It fails to distinguish between content producers and intermediaries such as Internet Service Providers (ISPs), social media platforms, or third-party commenters on news platforms, placing an equal obligation on all parties to observe 24-hour takedown notices made by police, and introduces compounding punishment for failure to remove content. This further increases the risk of intermediaries engaging in self-censorship. The recent prosecution of Malaysiakini for user comments highlights how authorities could abuse the Ordinance to restrict independent media.
• The Ordinance grants police or ‘authorized officers’ enforcing the Ordinance unfettered access to personal data, including access to ‘necessary password, encryption code, decryption code, software or hardware’, and disproportionately penalizes non-compliance.
• The Ordinance limits legal challenges. Individuals subject to a court order to remove content cannot apply to set aside the order if it concerns ‘fake news which is prejudicial or likely to be prejudicial to public order or national security’ and if the order is obtained by the Government.
• The Ordinance establishes vague requirements for the preservation and disclosure of personal data. Under the Ordinance, the police or an ‘authorized person’ can issue a written notice requiring those in control of communication systems to preserve data for an unspecified period of time and to provide that data to the authorities upon request. It does not specify the nature of the written order or whether there is an effective appeal process. It provides disproportionate penalties for failure to comply.
• Preservation and disclosure orders can be made privately and kept secret. Anyone who receives such an order is forbidden from publicly disclosing the order ‘without lawful authority’. This restriction could prevent independent third parties from monitoring the government’s implementation of the Ordinance. It also raises questions about access to evidence and the right to a fair trial should the disclosed data be used as part of a criminal proceeding but be withheld from legal representatives of the accused.
• There is no effective right to remedy, as required by international law. The Ordinance states that the Malaysian government, police and any ‘authorized officer’ acting under the Ordinance ‘in good faith’ shall be immune from prosecution or other proceedings, allowing for impunity for those who commit human rights abuses. All offences established by the Ordinance are sizeable offences, meaning that police may arrest suspects without a warrant. The possibility of arbitrary detention without access to a remedy is particularly worrying.
• The Ordinance affects the free flow of information globally. The Ordinance provides expansive jurisdiction, allowing authorities to target any person anywhere in the world, so long as the expression concerns Malaysia or the person affected by the commission of the offence is a Malaysian citizen. This provision could allow authorities to seek to block content created or shared abroad, curtailing the right to information.

While it is important for authorities to prevent the spread of disinformation, and ensure accurate information about the coronavirus, there are steps that the government of Malaysia could take to tackle disinformation that are less threatening to free speech. As well as investing in public awareness campaigns about the pandemic, it could adopt longer-term measures such as promoting media and digital literacy, incorporating the subject into school curriculums, and engaging with relevant civil society actors.

The Ordinance is deeply flawed, unnecessary, and fundamentally incompatible with international human rights law. It should be immediately repealed in its entirety.

Parliament should be convened as soon as possible to review emergency measures and ensure government accountability.

The Malaysian government should additionally initiate a program of legislative reform to bring its legal framework in line with international standards relating to freedom of expression. In particular, the government should repeal the Sedition Act 1948, amend the Communications and Multimedia Act 1998, and consider legislation protecting online intermediaries from criminal and civil liability for third party content. The Malaysian government should also ratify without delay the International Covenant on Civil and Political Rights, which protects the right to freedom of expression.