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The Questionable Necessity of a “Fake News Law”

Our Prime Minister, Najib Razak and Youth and Sports Minister, Khairy Jamaluddin have of late made headlines regarding a proposed ‘fake news law’. The latter has even gone so far to say that the opposition should support such legislation.

Any reasonable lawmaker would know that it is far too early to call on such support at this stage, given that no one has had sight of the actual bill.

It would not be misplaced to profess a lack of confidence or trust in the motivation behind this new law, especially given the federal government’s track record of tabling laws which appear to be driven by good intentions but end up being undermined by a lack of attention to detail, loose drafting and a failure to consult with stakeholders. We see these problems materialise in the National Security Council Act 2016, the Public Assembly Act 2012 and the Printing Presses and Publications Act 1984, to name a few.

There are clear hurdles in even attempting to draft a ‘fake news law’. The first being the question of who determines the truth? There is only one answer to that question, and that is ‘the bearer of the truth’.

Now, according to our court system, the proposed ‘fake news law’ can to my mind only provide two recourse – a civil remedy; or criminal sanction. The former begins with a process where a private litigant pursues proceedings personally against his/her/it’s alleged wrongdoer. The latter is triggered through the law enforcement machinery i.e. the police and the prosecution.

Assuming for a moment that the proposed ‘fake news law’ provides a civil remedy. In these circumstances, a private litigant who finds fake news published about him/her/it would assumedly be able to use such ‘fake news law’ as a basis to file proceedings in court.

Such be the case, we then must ask – why is there a need for a ‘fake news law’, given that we already have the common law of defamation and also the common law of malicious falsehood? Elements of these laws can also be found in the Defamation Act 1957.

We must be reminded that the jurisprudence behind defamation and malicious falsehood has developed over hundreds of years across various commonwealth jurisdictions – which Malaysia has readily adopted and borrowed from.

Is there something lacking in our current laws that calls for the need of an entirely new law? I don’t believe so, given especially how there is a built-in mechanism in the Court system called ‘equity’, which functions to fill in the gaps of common law. If indeed our laws do suffer from deficiencies, would not the appropriate course of action be to amend those laws?

On the front of civil remedy therefore, I cannot see the need for a new ‘fake news law’.

Now, let’s go on to the assumption that the proposed ‘fake news law’ provides criminal sanctions. This is where the danger arises. Unless criminal prosecution is complaint-triggered (where a person lodges a police report against an alleged wrongdoer) there is a risk that police-triggered prosecution (where the police clamps down on fake news in its own right) would go against the tenant that only the bearer of truth can determine whether the news in question is fake. Concerns of arbitrariness in police-triggered prosecution arises.

Even if the ‘fake news law’ confines criminal sanctions to complaint-triggered prosecution, there is still the argument that any law that seeks to prohibit speech goes against the right to freedom of expression, which is encapsulated in Article 10 of our Federal Constitution. The argument being that Article 10 only allows parliament to impose restrictions and not prohibitions. Criminal sanctions on matters of speech would amount to prohibition.

Again, on this front, criminal sanctions for fake news does not appear to be legally sound.

An argument that the ruling government might then take is that the proposed ‘fake news law’ would be less to do with redress and would instead be aimed at regulating the rapid dissemination of false content.

That proposal too does not hold water, as there are already existing provisions in the Communications and Multimedia Act 1998 which prohibits content that is “indecent, obscene, false, menacing, or offensive in character” – a wide provision no less. We saw this law operate sometime mid-2016 when a 76-year-old man was arrested for allegedly posting an insulting picture in a Whatsapp group chat – an example of the far-reaching implications of that Act.

In my view, fake news need not and, according my current analysis, should not be tackled through legislation. What is fake can be counteract by what is true. Policy-wise this is where, one, education in creating more discerning citizens becomes important; and two, freedom of information to verify the news in question becomes necessary.

As most of us are aware, the state governments of Penang and Selangor have passed freedom of information enactments. This means that citizens of Penang and Selangor have far more access to information concerning their state legislature than their Malaysian counterparts.

Pakatan Harapan by its history in Penang and Selangor demonstrates that it would not be a government that enacts onerous laws. Malaysian citizens can expect a Pakatan Harapan government to amend or even roll back on the oppressive laws which I have named earlier in my article. The question is – a would this ‘fake news law’ be another one of them?

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