Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
Public were generally cautioned in spreading news through online platforms. Anti-Fake news posters could be seen at public places such as Light Rapid Transit (LRT) and bus stations.
Image credit: https://cilisos.my/wait-why-do-we-need-fake-news-laws-when-we-have-defamation-laws/
As technology advances with time, the dissemination of fake news is becoming a global concern which affects the safety, economy and well-being of most countries. For instance, there is a widespread concern expressed in the United States (“US”) that the 2016 US Presidential Election (“2016 Election”) saw online falsehoods spread by private actors and Russia. Back in Malaysia, fake news has led to a shoe company, Bata Primavera Sdn Bhd, losing more than RM500, 000 in just a month after an allegation that went viral about the company selling shoes with the Arabic word “Allah”. Fake news also sparked unnecessary public confusion when a fire broke out at the Employees Provident Fund (“EPF”)’s building and people began panicking that their EPF savings were affected by the fire. Needless to say, the recent 14th General Election also observes an abundance of unverified election news spreading on media outlets.
The above instances illustrate that the dissemination of fake news is not only a Malaysian problem but a global threat to the world of information which needs to be tackled swiftly and effectively. In this regard, the public raised an eyebrow when the Malaysian Legislatives passed the Anti-Fake News Act 2018 (“Act”) at the Dewan Rakyat and Dewan Negara on 2 April 2018 and 3 April 2018 respectively. Subsequently, the Act received royal assent on 9 April 2018 and came into force on 11 April 2018. In general, the Act seeks to deal with fake news by providing for certain offences and measures to curb the dissemination of fake news. With that, this article will first provide an overview of the Act and further, a comparative study on foreign jurisdictions.
II. OVERVIEW OF THE ANTI-FAKE NEWS ACT 2018
The definition of “fake news” in the Act does not simply include news but also information, data and reports. In the same vein, it can be in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas and a piece of news that is partly false is sufficient to constitute as fake news. This definition seems to suggest an extremely wide context where it does not only cover news, but also any form of materials such as data, reports or information. Besides, the term ‘false’ is regrettably not defined and it is silent as to by whom the legality of the news should be determined. If a piece of news is published by a person with malicious intent without taking reasonable measures to verify the truth of the news, it can be construed as a piece of false news. It is pertinent to point out that it is already an offence to publish false news under section 8A(1) of the Printing Presses and Publications Act 1984 whereas false communication is criminalised under section 233(1)(a) of the Communications and Multimedia Act 1998.
Interestingly, the Act provides for an extra-territorial application where a person can be charged under the Act regardless of his nationality or citizenship. Meaning, the Act applies to offences committed outside Malaysia by a Malaysian or a foreigner so long as the fake news concerns Malaysia or affects a Malaysian. Neither the complainant nor the person being complained of needs to be physically present in Malaysia for the offence to have been committed. For instance, a foreign press or commentators can conveniently be targeted and published for not toeing the official line when reporting on controversial issues about Malaysia. It is pertinent to note that extra-territorial jurisdiction is not usually invoked, save for extremely serious crimes such as piracy and terrorism. A person committing an offence under the Act will only be charged when the accused is brought to Malaysia through an extradition process. That said, reference may be made to the Mutual Assistance in Criminal Matters Act 2002.
The Act provides for 4 main offences, namely:
A. Creating, offering, publishing, etc., fake news
It is an offence under the Act for a person to be proven to maliciously create, offer, publish, print, distribute, circulate or disseminate any fake news, or publication containing fake news. The following illustrations intend to explain the scope of the offence:
It is pertinent to note that an offence committed under the Act is a criminal offence. Therefore, the term ‘maliciously’ under section 4(1) of the Act suggests that the prosecution ought to prove malice of the accused beyond reasonable doubt. To prove express malice, the prosecution must show 2 points, namely:
(i) that the defendant does not believe in the truth of the information; and
(ii) that the dominant desire of the defendant should not be to give vent to his personal spite or ill will or to obtain some private advantage unconnected with the duty or interest.
In Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v Bre Sdn Bhd, the High Court found that the sole purpose of the concerned letter was to put the plaintiff to public ridicule and contempt. It is only when the defendant’s desire to act on the duty or interest plays no significant part in his motives for publishing his honest belief that it can be said express malice exists. However, the illustrations under the Act seem to reflect the proof of knowledge instead of malice. On top of that, unlike other criminal offences, there is no requirement for the prosecution to prove harm under the Act. Therefore, it is regarded as a conduct crime and not a result crime. It is to be contrasted with the criminal offence under section 233(1)(a) Communications and Multimedia Act 1998 where the harm to be proven is that the publication was published with the intent to annoy, abuse, threaten or harass another person.
An accused, upon conviction under the Act, is punishable by a fine up to RM 500,000 or imprisonment for a term not more than 6 years or both and a continuing fine of RM 3,000 for each day of non-compliance. In addition, the court can also order the accused to make an apology to the person affected by the fake news and if the accused fails to comply with the court order, he or she will be subject to a contempt of court.
B. Financial assistance
A person can be charged under this Act if he renders financial aid to help creating or spreading fake news, but only if he or she knowingly does so or has a good reason to suspect the funds will support the fake news. Upon conviction, the punishment is tantamount to the offence stated in (a) above, that is, a fine of not more than RM 500,000 and imprisonment for a term not exceeding 6 years or to both.
C. Failing to remove publication containing fake news
A person who is in control or has in his or her possession any publication containing fake news must immediately remove it as soon as he or she knows or has reasonable grounds to believe that such publication contains fake news. This section targets the intermediaries and those who have control over third party contents such as social media platforms, hosts and search engines. Their failure to do so may result in a fine not exceeding RM 100,000 and a further fine not exceeding RM 3,000 for every day during which the offence continues after conviction.
Additionally, a person who is affected by the fake news may apply to the court for an ex parte order to remove the fake news without informing the person being complained. Hence, there is no opportunity to have both parties present in court to argue the veracity of the fake news. The Sessions Court must then decide on the issue and grant an order upon an evaluation of the complaint and any supporting evidence submitted by the complainant. A court order to remove the publication can be served by electronic means, which is not defined but could conceivably include service by email, WhatsApp, Twitter, Facebook, or other forms of text messaging or social media platform. Failure to abide by the court order leads to the commission of a criminal offence, which carries a fine up to RM 100,000.
Persons being complained can then challenge the court order within 14 days from the date the order is served on them but an application to challenge does not operate to suspend or defer the original order. However, there is an ouster clause that if it is the Government that obtains the order and alleges that the fake news is prejudicial or is likely to be prejudicial to public order or national security, the order cannot be challenged. The Act is silent as to whether a citizen may apply for an ex parte order to remove the false news where the Government publishes fake news.
D. Abetting or assisting any of the above offences
A person who abets the commission of any offence mentioned in (a), (b) and (c) shall be penalised with the punishment provided for the offence respectively.
If the offence is committed by a body corporate, the Act allows for criminal liability to be attached to its directors and officers, unless they can prove the offence committed was without their knowledge and they had taken all reasonable precautions. In all offences committed under the Act, arrest without warrant is permitted.
III. FOREIGN JURISDICTIONS
The German Parliament has recently adopted the Network Enforcement Act (“NetzDG”) which came into force on 1 October 2017. The NetzDG has the dubious honour of being the first fake news law in the world which aims to combat hate speech and fake news in social networks. In this regard, it is noteworthy that the NetzDG is only applicable to social media networks which have more than 2 million registered users, for example, Twitter and Facebook. Social media networks are defined as tele-media service providers that operate online platforms with the intent to make a profit, on which users can share contents with other users or make that content publicly available.
The NetzDG obligates these social media networks to remove contents that are ‘clearly illegal’ within 24 hours after receiving a user complaint. If the illegality of the content is not obvious, the social network has 7 days to investigate and delete it. The 7-days deadline may be extended if the social network hires an external agency to perform the vetting process, namely Agency of Regulated Self-Regulation (“ARSR”). An agency may be recognised by the Ministry of Justice as an ARSR if the examiner is independent and possesses the necessary expertise to guarantee a speedy examination within 7 days, to provide the rules of procedure on ways to deal with a complaint, and is supported by several social media networks with sufficient facilities to work efficiently and expeditiously. To determine the illegality of the content, the NetzDG may make reference to the Criminal Code provisions on dissemination of propaganda material, encouragement of the commission of an offence endangering the state, commission of treasonous forgery, public incitement to crime, and incitement to hatred.
The social media platforms are obligated to offer their users an easy and transparent complaint mechanism that is constantly available. The decisions made with regard to the complaint and the reasoning behind accepting or rejecting it must be communicated to the complainant and the affected user without undue delay. Social media networks that receive more than 100 complaints about false content in a calendar year are required to publish biannual reports in the Federal Gazette and on the homepage of the social media network. A social media network that intentionally or negligently commits the offence under the NetzDG may be fined up to € 50 million.
The Singapore Parliament was requested by the Singapore Government to appoint a Parliamentary Select Committee (“Select Committee”) to study the problem of deliberate online falsehoods and to recommend how Singapore should respond to it.
On 5 January 2018, the Ministry of Communications and Information and the Ministry of Law have issued a Green Paper entitled “Deliberate Online Falsehoods: Challenges and Implications” (“Green Paper”) to the Parliament.  The paper sets out how fake news had affected other countries in the world, the steps those countries were taking and the possible solutions.
Subsequently, a Select Committee was set up to study the concerns highlighted in the Green Paper. The Select Committee held 8 days of public hearings, with a total of 65 individuals including representatives from experts, technology and media companies, civil societies, students and members of the public who were called to speak before the Select Committee to make their recommendations to lawmakers. Whilst the Select Committee will meet again after Parliament reconvenes in May, the efforts reflect the sincerity of the Singapore authorities to consult widely and engage deeply on the issue for a better understanding of the problem and to recommend solutions that would best serve Singapore and Singaporeans.
C. United States
Despite the US is facing serious turmoil with regard to fake news in its 2016 Election, the country does not have any specific regulation to tackle fake news to date. However, it is relevant to note that the US Senators proposed the Honest Ads Act (“Bill”) on 19 October 2017 to promote the regulation of online campaign advertisements by companies such as Facebook and Google. The Bill was introduced as a response in order to investigate the purchase of political advertisements by Russia during the 2016 Election.
The reforms proposed by the Bill are threefold:
As the Cambridge Analytical scandal broke, the supporters of the Bill saw an opportunity to exert pressure to the generally regulation-averse social media platforms. This strategy appeared to pay off. In April 2018, Facebook and Twitter have expressed their support on the Bill to increase transparency in political advertising and to promote accountability of advertisers.
The dissemination of fake news is now a knotty legitimate issue globally. Many countries have attempted to tackle the issue via legislation.
In Germany, the government empowers social media platforms to deal with false publication where they are required to investigate further upon the lodging of a complaint. The result of the investigation must then be communicated to the complainant and published to the public transparently.
In Singapore, a Select Committee on the Green Paper was set up to obtain feedback through public hearings on online falsehoods. Although many civil society groups in Singapore have criticised the Select Committee as a farce, at the very least there is a consultative process through public hearings on the matter before a bill is tabled to be passed in Parliament.
In US, the Bill was introduced to close a loophole that has existed since politicians started advertising on the internet.The Bill was expected by many to sail through Congress. The Bill introduced disclosure and disclaimer rules to online political advertising. Taking into account the investigation by the Congress on how Russia used technology companies to influence the 2016 Election, it was considered by many in US to be the bare minimum lawmakers could do to address the problem.
Looking at the issue of fake news in the context of Malaysia, the Act seems to be empowered with a wider scope to include any person who disseminates false news, and the burden is placed upon the court to determine the validity of the news. Still, an ex parte order can be obtained to remove the alleged fake news. Such allocation of burden is in stark contrast with the NetzDG in Germany where social media platforms are specifically targeted with the burden to investigate the alleged fake news.
It is also debatable as to whether the Act should be seen as redundant or complementary to the existing laws such as the Communications and Multimedia Act 1998, the Printing Presses and Publication Act 1984 and the Penal Code.
Certain critics have also highlighted the potential abuse of the Act to stifle freedom of expression. Ultimately, attention must be drawn to the freedom of expression as provided by Article 10 of the Federal Constitution.
Another drawback of the Act is that it was passed in a rush without a thorough consultation process with relevant stakeholders. On the danger of selective prosecution, the then Minister in the Prime Minister’s Department, Datuk Seri Azalina Othman Said denied the insinuation by saying that the prosecution will only take place after a comprehensive investigation, which is in line with the legal maxim “a person is innocent until proven guilty”, then a conviction will be determined by the court.
It was reported on 27 April 2018 that Malaysiakini has filed a judicial review application on the Act, declaring that it violates Article 5(1), Article 8(1) and Article 10(1) of the Federal Constitution. Just a few days later, Danish national was reported to be the first person to be charged and punished under the Act over a YouTube video he posted regarding the shooting of a supposed Hamas member.
The author would like to draw the readers’ attention to a quote by Stephen Magagnini in The Sacramento Bee: “Objectivity is impossible, but fairness is mandatory.” Fairness should be the over-arching aim of the Act. With the shift of government in Malaysia recently, the new Prime Minister has promised to revise the Act whilst a civil rights group, Lawyers for Liberty utters that the Act should be abolished instead. It is interesting to see what is next.
Written by Ng Seng Yi, a final year student of the Faculty of law, University of Malaya. (Edited by Adam Huang)
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
 “Fake News About School Shoes Cause Bata to Lose RM500,000”, The Straits Times, 1 April 2017, 29 April 2018, <https://www.straitstimes.com/asia/se-asia/fake-news-about-school-shoes-causes-bata-to-lose-rm-500000>.
 “No EPF Withdrawals? That’s a Fake Message, Folks”, The Star Online, 13 February 2018, 29 April 2018, <https://www.thestar.com.my/news/nation/2018/02/13/no-epf-withdrawals-thats-afake-messagefolks/>.
 Nazura Ngah, “ FAQs: What You Need to Know About The Anti-Fake News Bill 2018”, New Straits Times, 26 arch 2018, 24 April 2018, < https://www.nst.com.my/news/nation/2018/03/349691/faqs-what-you-need-know-about-anti-fake-news-bill-2018>.
 Act 803.
 Hemananthani Sivanandam, Hanis Zainal and Tarrence Tan, “Anti-Fake News Bill 2018 Passed in Dewan Rakyat”, The Star Online, 2 April 2018, 24 April 2018, < https://www.thestar.com.my/news/nation/2018/04/02/anti-fake-news-bill-2018-passed/>.
 Bernama, “Dewan Negara Passes Anti-Fake News Bill”, The Star Online, 3 April 2018, 24 April 2018, < https://www.thestar.com.my/news/nation/2018/04/03/dewan-negara-passes-anti-fake-news-bill/>.
 Hemananthani Sivanandam, “Anti-Fake News Act Gazetted, is Now in Effect”, The Star Online, 11 April 2018, 24 April 2018, <https://www.thestar.com.my/news/nation/2018/04/11/anti-fake-news-act-receives-royal-assent/>
 Parliamentary Debates, Representative, Thirteenth Parliament, Sixth Session, First Meeting, 2 April 2018, 30:5, (Datuk Seri Dr. Ronald Kiandee).
 Section 2 of the Anti-Fake News Act 2018.
 Lim Guan Eng v Public Prosecutor  2 MLJ 577 (FC).
 Act 301. Section 8A(1) reads as “where in any publication there is maliciously published any false news, the printer, publisher, editor and the writer thereof shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding twenty thousand ringgit or to both”.
 Act 588. Section 233(1)(a) reads as “a person who by means of any network facilities or network service or applications service knowingly (i) makes, creates or solicits; and (ii) initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person…”
 Section 3 of the Anti-Fake News Act 2018.
 Eric Paulsen, “The Anti-Fake News Law Will Be The Death Knell for Freedom of Speech in Malaysia”, Lawyers For Liberty, 26 March 2018, 25 April 2018, < http://www.lawyersforliberty.org/lfl-the-anti-fake-news-law-will-be-the-death-knell-for-freedom-of-speech-in-malaysia/>.
 Act 621.
 Section 4 (1) of the Anti-Fake News Act 2018.
 Section 4, illustration (a) to (h) of the Anti-Fake News Act 2018.
 Farid Sufian Shuaib, “General Publication, Public Interest and Common Law Qualified Privilege: Where is The Law Heading”, Malayan Law Journal Articles 2 (1999) clxxiv, 3 May 2018, <https://www.lexisnexis.com>.
  MLJ 393 (HC).
 SSee footnote 11 above.
 Section 4(1) of the Anti-Fake News Act 2018.
 See footnote 21 above.
 Section 4(2) of the Anti-Fake News Act 2018.
 Section 4(3) of the Anti-Fake News Act 2018.
 Section 5 of the Anti-Fake News Act 2018.
 See footnote 25 above.
 Section 6(1) of the Anti-Fake News Act 2018.
 Section 6(2) of the Anti-Fake News Act 2018.
 Section 7(1) of the Anti-Fake News Act 2018.
 Section 7(3) of the Anti-Fake News Act 2018.
 Section 7(5) of the Anti-Fake News Act 2018.
 Section 7(6) of the Anti-Fake News Act 2018.
 Section 8(1) of the Anti-Fake News Act 2018.
 Section 8(2) of the Anti-Fake News Act 2018.
 Section 8(3) of the Anti-Fake News Act 2018.
 Section 13(1) of the Anti-Fake News Act 2018.
 Section 12 of the Anti-Fake News Act 2018.
 Article 3 of the Network Enforcement Act.
 Article 1, Section 1(2) of the Network Enforcement Act.
 Article 1, Section 1(1) of the Network Enforcement Act.
 Article 1, Section 3(2)(2) of the Network Enforcement Act.
 Article 1, Section 3(2)(3) of the Network Enforcement Act.
 See footnote 42 above.
 Article 1, Section 3(6) of the Network Enforcement Act.
 Article 1, Section 1(3) of the Network Enforcement Act.
 Article 1, Section 3(1) of the Network Enforcement Act.
 Article 1, Section 3(2)(5) of the Network Enforcement Act.
 Article 1, Section 2(1) of the Network Enforcement Act.
 Article 1, Section 4(2) of the Network Enforcement Act.
 Singapore, Ministry of Communications and Information and the Ministry of Law, “Green Paper: Deliberate Online Falsehoods: Challenges and Implications”, Misc.10, (2018).
 Taylor Hatmaker, “Twitter Endorses the Honest Ads Act, A Bill Promoting Political Ad Transparency”, Techcrunch, 11 April 2018, 29 April 2018, <https://techcrunch.com/2018/04/10/twitter-honest-ads-act/>.
 Selina Wong, “Twitter Follows Facebook in Endorsing Senate’s Honest Ads Act”, Blomberg, 11 April 2018, 28 April 2018, < https://www.bloomberg.com/news/articles/2018-04-10/twitter-follows-facebook-in-endorsing-senate-s-honest-ads-act >.
 Chester Tay, “Anti-Fake News Bill Passed”, The Edge Financial Daily, 3 April 2018, 30 April 2018, < http://www.theedgemarkets.com/article/antifake-news-bill-passed>.
 Karen Arukesamy, “News Portal Files Review to Declare Anti-Fake News Act Unconstitutional”, the Sun Daily, 27 April 2018, 29 April 2018, <http://www.thesundaily.my/news/2018/04/27/news-portal-files-review-declare-anti-fake-news-act-unconstitutional-updated>.
 Qishin Tariq, “Danish National First to be Sentenced under Anti-Fake News Law”, The Star Online, 30 April 2018, 1 May 2018, <https://www.thestar.com.my/news/nation/2018/04/30/danish-national-first-to-be-sentenced-under-anti-fake-news-law/>.
 Reporters, “Fake News to be Defined, Says Mahathir”, Free Malaysia Today, 13 May 2018, 15 May 2018, <http://www.freemalaysiatoday.com/category/nation/2018/05/13/fake-news-to-be-defined-says-mahathir/>.
 Robin Augustin, “Abolish, Not Amend Law on Fake News, New Government Told”, Free Malaysia Today, 14 May 2018, 15 May 2018, <http://www.freemalaysiatoday.com/category/nation/2018/05/14/abolish-not-amend-law-on-fake-news-new-govt-told/>.