By: John Berthelsen

A long list of rights groups and others have erupted over a loosely-worded and draconian bill before the Malaysian parliament that would provide for sentences up to 10 years for printing so-called fake news, saying the bill would unduly limit freedom of opinion or expression and could be used to suppress legitimate criticism of the government.

The concept of “fake news” has suddenly gained currency because of the rise to the US Presidency of Donald Trump, who by actual count issued more than 2,100 verifiably false statements during his first year in office while branding every negative story about his presidency “fake news.”  In fact, according to the fact-checking organization PoliFact, during his first year in office Trump’s public statements were wholly true only 5 percent of the time, fully true 11 percent of the time, half-true 15 percent, mostly false 22 percent, outright false, 32 percent and “pants on fire” 15 percent of the time.

Malaysian Prime Minister Najib Razak has run up  a pretty good record of his own, claiming for instance that he had never met the murdered Mongolian party girl Altantuya Shaariibuu who was killed by his bodyguards in 2006 despite credible evidence that he had, that he was innocent of all wrongdoing in the purchase of French submarines although he was cited as having been the recipient of bribes by French prosecutors, that he had been cleared of all charges in the enormous 1MDB scandal in which US$4.5 billion had disappeared, that the US$681 million that found its way into his private bank accounts was a gift from Saudi royalty, and many more.

With national elections looming possibly as early as within days and with an increasingly unpopular government looking to limit free expression, the bill is regarded by opponents as yet another method of limiting criticism, particularly of Najib.  It is aimed at quelling criticism on social media, about the last avenue left for an increasingly hemmed-in opposition.

In its inclusion of Malaysians and foreigners alike, even if they are outside of Malaysia, the bill is also aimed at critical news organizations like Sarawak Report, which has published dozens of deeply embarrassing and often incriminating stories about Malaysian crookedry, and Asia Sentinel, both of which have been barred from circulating in the country. Malaysian academic Din Merican, who is affiliated with a university in Cambodia, was added to the list last week.

The fake news legislation is one spike in a long list of other attempts to neuter the Pakatan Harapan opposition headed by former Prime Minister Mahathir Mohamad, including a contorted redistricting that leaves some Barisan Nasional districts with as few as 4,000 voters while cramming up to 150,000 opposition adherents into others.  The government has used sedition, official secrets and public security laws to attempt to intimidate opposition members and leaders.

Among those protesting the fake news legislation are at least 13 good government organizations including the International Commission of Jurists, ASEAN Parliamentarians for Human Rights, the Kuala Lumpur-based SUARAM, the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information.

Tech giants including Facebook, Amazon, Google and others have expressed concern prior to the publication of the bill, which critics say could hurt mainstream organizations as well as the opposition, limiting access to wide amounts of industrial, business and other information as well as criticism.

“The bill is flawed in its design and will be open to abuse by the Malaysian government which maintains a poor track record in upholding freedom of expression,” said Sevan Doraisamy, SUARAM’s Executive Director, in a prepared release.

Emerlynne Gil, ICJ’s Senior International Legal Adviser added in the SUARAM release that, “The term ‘fake news’ is in itself problematic.  It is defined in an overbroad manner in the draft law, and therefore vulnerable to arbitrary interpretation and enforcement.”  Gil further said, “Given past experience in Malaysia, it is highly likely to be used to suppress legitimate criticism of the government on matters of opinion or where the facts are contested.”

The bill, according to the judicial organization, “makes no provision for exceptions or defenses such as honest mistake, parody, artistic merit, or public interest. The bill would allow up to 10 years’ imprisonment for publication of fake news.

“The penalties are wildly disproportionate”, said Gil. “Indeed, under international standards, imprisonment is never an appropriate penalty for such offences.”

The bill has been introduced during the final days of the sitting of Parliament, which is expected to be dissolved soon to make way for the election, leaving little time for deliberation or consultation.

“Allowing this bill to be passed would only serve as an affront to democratic values. It will be another strike on Malaysia’s already shoddy human rights record,” said Doriasamy. “Adopting a law that would unduly limit the right to freedom of opinion and expression is not the optimal way to counter disinformation and propaganda. The best way is to disseminate accurate information and to make such information accessible to everyone,” said Gil.

In addition to the prospect of 10 years imprisonment, offenders may be subject to a fine up to RM500,000 (US$127,681) if convicted of knowingly creating, offering, publishing, printing, distributing, circulating, or disseminating any ‘fake news’ or publication of ‘fake news.’