As the new government contemplates removing this piece of legislation, looking elsewhere for guidance on “fake news” legislation may be instructive, but should be not relied upon completely. Examples such as Germany’s Act to Improve Enforcement of the Law in Social Networks are an improvement, due to its increased specificity.[3] The law itself does not criminalize content, instead preventing the spread of already criminalized content defined in the German Criminal Code. Despite this, the German legislation also suffers from lack of clarity in defining when content clearly violates one of the enumerated sections, which would require swifter removal.

For Malaysia, even if the Anti-Fake News Act was repealed, current existing legislation continues to be too strict and fails to provide a satisfactory balance between freedom of expression and protecting the public from falsehood, hate speech, and expression intended to incite violence. A combination of the Sedition Act, Printing Presses and Publications Act (PPPA), Communications and Multimedia Act (CMA), and sections 499, 504, and 505(b) of the Penal Code have all been used to silence government dissenters, regardless of the level of falsehood contained in the content and will continue to present a threat to our right under Article 10 of the Federal Constitution.[4]

These pieces of legislation suffer largely from the same crucial issue of the Anti-Fake News Act, which is that they are overly broad in the content they criminalize, and the defenses are too narrow. To seriously address the issue of “fake news”, the government must be specific and clear in its definitions. Any new legislation crafted to address “fake news” must first acknowledge that it cannot mean any false information. Such a definition is simply too broad to be effective at dealing with the real issue, which is the rapid spread of disinformation through social media. A way forward would perhaps be retaining the Anti-Fake News Act but defining disinformation as “all forms of false, inaccurate, or misleading information designed, presented and promoted to intentionally cause public harm or for profit” which would include harmful information such as defamation, hate speech and incitement to violence, but exclude deliberate but not misleading distortions of facts such as satire and parody.[5] However, overlapping provisions currently existing such as S.233 of the Communications of Multimedia Act would have to be revised, if not removed, in light of the new provision.

Furthermore, the target of such legislation cannot be so broad as to encompass anyone that disseminates such information, particularly because the targeting of private individuals is highly inefficient at addressing the issue and open to large abuses by the government, particularly selective prosecution. Given that the problem is the rapid spread of disinformation through social media, any new legislation ought to only deal with information distributors that hold a large enough audience.

More importantly, the best method for the new government of Malaysia to combat “fake news” and disinformation is to promote transparency in the press and increased media literacy. Disinformation is only truly harmful when it is able to convince the public of the truth of its contents. Restoring the public’s faith in more reputable news sources and giving them tools to properly discern the accuracy of online information would go a long way to dispel the spread of disinformation. Positive policy decisions to promote healthy and ethical reporting is just as crucial, if not more, than legislation penalizing “fake news”

Ultimately at this juncture, the removal of the Anti-Fake News Act is a positive step towards increased freedom of speech and strengthening of democratic institutions. However, the Anti-Fake News Act alone is not wholly responsible for the suppression of freedom of speech in Malaysia, and before new legislation is implemented in its place, a review of other acts is also necessary.

*This article is co-written by Louis Liaw and Jin-zhi Pao.