At a press conference, a person asserts that the owner of a supermarket will distribute “gifts to the first one hundred customers… every first Saturday of the month” despite knowing that the owner does not have such plans. This was an illustration given in Malaysia’s “Anti-Fake News Act” (Part II, 4(h)). Just a couple of days after the enactment of the law, this scenario was bizarrely played out, albeit with minor differences. A message claiming Johor’s Crown Prince would pay for people’s groceries at a supermarket went viral over social media. Hundreds went in anticipation.
The details of this first “fake news” case following the enactment of the Act will likely unfold in the run-up to the 14th General Election (GE14). As the Act was swiftly put into force before GE14, it is apropos to take a step back and discuss the context accommodating this Act, the limitations to legal action against allegations of fake news, and the influence the Anti-Fake News Act could have on GE14, as well as in its aftermath.
The Anti-Fake News Act is the latest in a series of legislative acts made to address the issue of “false” news and rumor-mongering. For instance, section 8A of the Printing Press and Publication Act 1984 penalizes “false news,” and the Communications and Multimedia Act 1998 section 233(1)(a) forbids any communication that is “obscene, indecent, false, menacing or offensive.”
The existence of such pertinent Acts led various parties, including the Malaysian Bar, to question the need for a new law. The Malaysian government, however, claims that pre-existing laws are limited in their capacity to address the complex challenges brought by technological advancements. Nonetheless, the seemingly hasty enactment of the law just weeks before GE14 – instead of a year or two ago, when technology was comparable to today – renders the timing suspicious.
The global hype around combating “fake news” and the exploration of legislative measures against online falsehoods in different countries has created a global climate conducive to justifying legislation against “fake news.” Indeed, Malaysia may deflect criticism made against it in the international arena and seek to legitimize its action by citing Germany’s Network Enforcement Act (NEA) as precedent, and by presenting countries such as France, the Philippines, and Italy as states considering legislative action against “fake news.”
While these countries and others debating the possibility of legislating fake news have different motivations and context-specific reasons, the potential manipulation of elections by way of disinformation campaigns constitutes a widely shared concern. The Malaysian government claimed it was a “victim of fake news” in the 13th general election and introduced the Act right before GE14. However, the lack of time to process potential cases before the nearing elections, and embattled Prime Minister Najib Razak’s allegation on the opposition’s weaponization of fake news suggests the Act is meant to regulate the information sphere, especially the internet, for the long haul. Hence, the Anti-Fake News Act, which the Malaysian government claims was introduced with the interest of maintaining “public order and national security,” hints at the looming curtailment of freedom of speech in cyberspace that has been somehow protected by the Multimedia Super Corridor.
The Anti-Fake News Act was enacted without exhaustive debate, despite the qualms about the compatibility of legislative action to the problem of disinformation. It is worth briefly addressing some of the substantial limitations of legal action.
“Fake news” is a contested term. The government argues that the Act offers a specific definition of “fake news,” and clarifies what it entails via illustrations. However, various parties, including the Malaysian Bar, believe that the Act, which seeks to penalize “wholly or partially false” information, does not provide a clear definition of the word “false.” Besides, the illustrations, like the one above, serve as examples that can be stretched to fit different cases. Hence, the ambiguous definition and thus, the potential extension of the meaning of “fake news” remains a concern, especially when politicians may use “misinformation” to “hide the truth or push their own agenda.” Significantly, the prime minister blames the opposition for capitalizing on “fake news.”
The uncertainty of what constitutes “fake news” may also result in the removal of sensitive or contentious information by content providers to avoid penalties. However, the effectiveness of implementing an order to remove content is likely to prove limited. Even if a post making false assertions is removed, the information can easily migrate onto other platforms and continue to circulate. A screenshot of a Facebook post, for instance, may go viral on WhatsApp or may circulate via other communication technologies such as email or SMS. Furthermore, the success of a comprehensive restriction order against content would be contingent upon the cooperation of social media companies – which remains unguaranteed. And even if the content is successfully deleted, its removal may trigger the counterproductive Streisand effect; the phenomenon in which information receives a spike in attention precisely because it has been censored.
The Anti-Fake News Act’s extraterritorial application is also questionable. The Act stipulates that an offense committed against Malaysia or a Malaysian by a person of any nationality falls under its scope, even if the offense is committed outside of Malaysia. This clause may trigger disputes with other governments. Countries with no extradition agreements with Malaysia may prove unwilling to cooperate. Some states may define “fake news” differently, while others may defend their citizens against allegations made by the Malaysian government. Furthermore, if the Malaysian government’s intention is to prevent potentially hostile states from conducting disinformation campaigns against Malaysia, there is little in this clause that would deter such action.
Additionally, legislative action may fail to respond to the advancement of the methods and technologies of disinformation campaigns. Moreover, it would not be a panacea for social-psychological causes that hamper the identification of trustworthy information such as cognitive biases and motivated reasoning, and the pertinent problems in contemporary media, such as the harvesting of social media data for targeted disinformation campaigns. Hence, it is necessary to embrace a multipronged approach and explore non-legislative measures including media literacy, the establishment of a nongovernmental agency focused on addressing disinformation campaigns, and collaborative initiatives between government, industry, nongovernmental institutions, and citizens.
The “fake news” incident in Johor and a subsequent one that sought to shroud doubt over the nationality of the Ampang Parti Islam Se Malaysia (PAS) candidate, Nurul Islam Mohamed Yusoff, may be investigated under the new Anti-Fake News Act. The loopholes embedded within this Act and the proceedings of the first cases, which may set precedents for the way in which similar allegations of fake news are tried under this law, will become evident over time.
Though it is difficult to assess the potential impact of this Act with immediate relation to the GE14 period, there are a few scenarios that are worth pondering.
It is unlikely that any investigations into “fake news” allegations made in the lead up to the election will receive sentencing before polling day. However, opposition campaign efforts may be exhausted by court cases filed against them under this Act. Some opposition candidates may feel threatened by the penalties specified in the Act. If this materializes, such scenarios might impede the opposition’s efforts to popularize their arguments, reach wide audiences, and garner sufficient support. Moreover, the “fake news” label may be further exploited to discredit opponents in the campaigning period, rendering it not only a defamatory weapon but also a tool to deflect attention from important policy debates.
Some are also concerned that the Act may silence online dissent by labeling unfavorable comments on contentious topics, such as the scandal surrounding sovereign wealth fund 1MDB, as “fake.” This risk is of particular importance during both the campaigning period and for post-election discussions as the tight control over traditional media has rendered the internet the most viable avenue for critical voices to promulgate narratives alternative to the Malaysian government’s. At the same time, if fence-sitters perceive the ruling Barisan Nasional (BN) to be exploiting the Act for political gain and to silence dissent, this may inadvertently diminish the legitimacy of the ruling coalition and lead some undecided voters to cast their ballots against BN candidates.
Post-election, the nature of the law will become apparent with the first few verdicts passed in accordance with the Act. While hefty penalties may curb dissent and allow the government to further control information flows, it may force dissent into chat groups on encrypted platforms (e.g., WhatsApp, Telegram, etc.), where information is shared only within trusted peer groups, and exchanges are more difficult to surveil and regulate. Some may also equip themselves with the technological skills necessary to avert identification. Moreover, mal-intended actors might escape the penalties of the Act by committing disinformation campaigns under the disguise of stolen identities.
The battle for GE14 will see different versions of truth manufactured and paraded. The Rakyat, a website launched by the BN to publish “accurate” information in anticipation of a potential surge of “fake news” before GE14, will propagate BN’s truths, while the opposition will promulgate its truths in the venues available to them. Given the ambiguous definition of “fake news,” propaganda and information labeled as “partially false” or “fake” during GE14 will likely expose the flexible boundaries of the political definition of “fake news” in Malaysia.
Gulizar Haciyakupoglu is a Research Fellow at the Centre of Excellence for National Security (CENS) at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University (NTU), Singapore.
This article is part of a series of commentaries by the S. Rajaratnam School of International Studies (RSIS) on the 14th Malaysian General Election.