With the watershed May 9 general elections having swept into power the Pakatan Harapan (PH) coalition, the repeal of the Anti-Fake News Act (AFNA) 2018 is merely a matter of time. One of the problematic piece of legislation singled out in the election campaign, AFNA 2018 owes its continued existence to the Barisan Nasional (BN) dominated Dewan Negara (upper house of the Parliament of Malaysia).

It looks to be only a matter of time before its repeal – Article 68 of the Federal Constitution of Malaysia states that the Dewan Negara can only delay bills for up to a year. Given that, the question of how the Pakatan Harapan government will seek to tackle fake news remains unanswered. To be sure, asking this question in no way seeks to make the case for the retention of AFNA 2018, but instead, to note the risks associated with leaving fake news unaddressed.

At its worst, a malicious actor could create fake news that at one glance would pass as legitimate. Once disseminated on social media, its reach is only limited to bandwidth and can come at the expense of a country’s democracy and national harmony. Most disconcertingly, perhaps, is that all this can be done anonymously from anywhere in the world.

That being the case, one caveat has to be made clear. The examples provided, while real, represent worst case scenarios. More often than not, everyday fake news cases are relatively harmless. This points to an important fact to appreciate. The spectrum of harm caused by fake news is extremely broad, and legitimate questions abound on whether these cases need to be dealt with via the law.

Regardless, this makes the case for delicate legislating — legislators need to be deliberate in approaching any regulation on fake news. Regulating fake news inevitably raises questions of censorship and potential infringement of the fundamental freedom of speech. Contextually, no freedom is limitless but the onus is on legislators to restrict freedoms only to the extent absolutely necessary to achieve the goal.

It would be a fair to say that by any reasonable yardstick, the Malaysian Anti-Fake News Act (AFNA) 2018 is a botched attempt at this.

Firstly, its stated objectives to curb the creation and dissemination of fake news, protect fake news victims, and maintain national security are vague and ill-defined. These are coupled with its problematically broad definition of fake news, which makes AFNA 2018 very uncertain in how and when it would apply. This would lead to situations where people are unable to regulate their conduct appropriately, making it no wild stretch of the imagination for masses to be criminalized under AFNA 2018.

Secondly, AFNA 2018 places liability almost completely on the creator, disseminator and publisher of fake news. This glaringly omits social media companies from any direct legal obligation to remove content found to be false. This is despite the fact that these companies having the capability to remove and to halt the spread of false publications. With this being the case, it is baffling how the previous government had imagined AFNA 2018 would meaningfully remove falsities online.

Thirdly, the maximum punishment for a creator, disseminator and publisher of fake news is disproportionately high at 500,000 Malaysian ringgit ($122,135) or six years’ imprisonment, or both. Aside from how disproportionate this is for “mere speech,” its stated justification to deter potential offenders falls flat upon closer inspection.

While appealing to common sense, a growing body of criminal justice research is proving otherwise. It has been shown that certainty of apprehension is more important in creating a deterrence effect than severity of punishment upon apprehension. Taking this together with the internet’s high-levels of anonymity, fake identities and social media companies being under no legal responsibility to act, the task to identify perpetrators would be incredibly arduous.

The factors above, among others, are behind the PH administration’s plans to repeal AFNA 2018. While this should be welcomed by all, again, it says nothing about how the PH government plans to tackle the problem of fake news. The assumption that fake news, in its very essence an idea, is better left to the “marketplace of ideas” is misplaced. The premise that good ideas will inevitably and eventually trump bad ones is untenable. This is because people, even ones with the best intentions are inherently emotional and irrational, especially when information presented conforms to preconceived notions, long-held beliefs and reaffirms ethnic, religious, and social identities.

Moving forward, the PH government needs to appreciate the risk posed by fake news.

One way to do this — whether by amending AFNA 2018 or in a new piece of legislation — is to have clear and specific objectives. With specificity, the legislation can be worded carefully and narrowly to meet that objective, while mitigating chances of indirect censorship. This would also help the legislation achieve legal certainty, meaning that it is clear in how it applies in order to allow the general public to be able to regulate their conduct accordingly.

An example of a clear objective can be seen in the French law on the “manipulation of information,” which is intended to prevent interference in France’s democratic process with false information. Toward this specific objective, the law would only be applicable during the official election period. This presumably is to maintain the delicate balance between protecting the democratic process and upholding the freedom of speech.

Toward meaningfully halting the spread of fake news, the government could consider introducing legal obligations and liabilities for social media companies. As mentioned before, these companies have the technical capability to halt the dissemination either through outright removal, or by disabling advertising options for false or misleading content. The claim that social media are mere platforms, not dissimilar from newspapers’ opinion sections thus under no legal liability for the content published is untenable. Social media companies have to be made more responsible for the misuse of their platforms, and no longer be allowed to be a mute spectator.

This approach follows Germany’s Network Enforcement Act (NetzDG), which creates obligations for social networks to set up methods for users to easily report illegal content, and for social networks to remove illegal publications within a set time-frame. Failing to do so could see social networks being fined up to 50 million euros ($57.3 million).

To be sure, neither France’s nor Germany’s approach are without criticisms. But the threat of fake news cannot be left unaddressed. The two examples stated above also go to show that there are alternative methods that could deal with fake news better than AFNA 2018, while simultaneously preserving the freedom of speech.

In moving forward, the reform agenda has to go on, but this should not come at the expense of risking Malaysia’s fledgling democracy and social harmony. In its current form, AFNA 2018 is untenable, and its repeal should be welcomed by all. With that being said, the threat posed by fake news needs to be addressed adequately, and while the silver bullet remains as elusive as ever, Malaysia’s fledgling democracy and national harmony needs to be protected.

This article was first published in The Diplomat on 12 January 2019.

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