Malaysia: Proposed “fake news” bill is a threat to freedom of expression (Article 19)

We, the undersigned civil society organisations, are deeply concerned about plans to table a bill to address “fake news” in Parliament next week. The bill, if adopted, will add to a range of repressive laws that have been used to violate the right to freedom of expression and undermine media freedom in Malaysia. We urge the government to drop the proposed bill, which we believe is yet another attempt to stifle debate and criminalise those who speak out against corruption and human rights violations.

In the context of the impending general elections, we are concerned that the “fake news” bill could be used as a dragnet to criminalise reporting on government misconduct, the expression of critical opinions, and the speech of the political opposition. Compounding these concerns are the inadequate constitutional protections for freedom of expression in Malaysia. Malaysian authorities have selectively prosecuted Malaysian opposition politicians, human rights defenders and journalists under existing laws for exercising their right to freedom of expression.

The proposed bill was agreed on this week by the cabinet and will be put before parliament next week, ahead of the upcoming elections to be held by August 2018. The government has said the bill is needed to defend “national security and public order” and has stated it will not affect freedom of expression, as protected by the Malaysian Constitution.

However, the notion of “fake news” is extremely vague and open to arbitrary interpretation, and legislation criminalizing or otherwise censoring “fake news” will likely give the authorities extensive powers to determine what information the public may access. Laws presented as attempts to protect the public from misinformation can often act as tools for governments to restrict the presentation of dissenting views or ideas, and ultimately violate the right to freedom of expression.

While Malaysia has failed to ratify the International Covenant on Civil and Political Rights (ICCPR), which protects the right to freedom of expression, international standards require that restrictions on freedom of expression on the supposed basis of national security or public order must be clearly set out in law, and necessary and proportionate to protect those aims.

UN and regional Special Rapporteurs have made clear in a joint declaration on freedom of expression and “fake news” that broad restrictions on “fake news” do not pass that test, stating 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 Malaysia, the passage of a “fake news” law would likely deepen the already existing restrictive environment for expression and further suppress public discourse and legitimate criticism of public officials and other powerful individuals.

Recently the Ministry of Communications and Multimedia warned of “stern actions” against those “propagating and spreading fake news” in relation to the 1 Malaysia Development Berhad (1MBD) scandal, in which Prime Minister Najib Razak is implicated. Deputy Communications and Multimedia Minister Jailani Johari has further stated that 1MDB-related information from sources other than Malaysian government authorities will be considered “fake news”, essentially establishing government authorities as the final arbiter of truthfulness. This issue is further compounded by a lack of transparency resulting from the Malaysian government’s abuse of the Official Secrets Act and the lack of comprehensive access to information legislation. The authorities have previously cracked down on those reporting on the 1MDB scandal using the repressive Communications and Multimedia Act.

We are also concerned by the government’s lack of transparency regarding the bill. The government has excluded key stakeholders from among civil society and the human rights community from consultations regarding the bill and has not published the proposed legislation. Any efforts to genuinely tackle the spread of misinformation online must be approached in a transparent, consultative manner, and avoid broad criminal restrictions on speech.

Many of the existing laws used to restrict freedom of expression in Malaysia—including provisions relating to false information, slander and malicious content online and offline—are overly broad and restrictive. We urge the Malaysian government to prioritize a review of these laws and reforms to bring them in line with international human rights standards.

We call upon the Government to immediately withdraw the proposed “Fake News” bill and ensure any future legislative proposals that have implications for the media or civil society are developed in full consultation with all stakeholders. It is crucial that the government takes steps to develop an enabling environment for freedom of expression in line with international standards ahead of upcoming elections, and end its use of flawed legislation to restrict free speech. “Fake news” may be an increasingly popular buzzword, but it cannot serve as an excuse for the Government to violate freedom of expression and censor criticism.

Signed: