A legislative Tyrannosaurus

AS a law graduate, former journalist and currently a columnist, the Anti-Fake News Bill 2018 (AFN) troubles me personally and professionally.

Offences are either vaguely defined or worse, undefined; the scope is extraordinarily extra-territorial while even a tincture of falsehood in an article will be deemed fake news. In short, the AFN is a legislative Tyrannosaurus.

Passed by the Dewan Rakyat on Monday and the Dewan Negara on Tuesday – the royal assent is expected soon – the AFN could become law before the 14th general election, expected to be held within weeks.

Few Malaysians will deny the need for strong safeguards against fake news, particularly if the untruths threaten this country's multiracial, multi-religious harmony or jeopardise national security. The key issue is whether the all-encompassing draconian AFN is the optimal solution.

Two amendments were made to the original AFN: the proposed maximum jail term will be reduced from 10 to six years while in Clause 4, the word "knowingly" will be replaced by "maliciously".

A major concern is AFN's vague definition of fake news. Clause 2 defines fake news as any news, information, data and reports which is or are, wholly or partly false, whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas.

Among several examples given in the AFN Bill, an advertisement that includes a caricature of a successful investor in an investment scheme, knowing the individual depicted isn't an investor, will constitute an offence.

Does this mean a cartoon can be deemed fake news? Will the phrase "any other form capable of suggesting words or ideas" embrace stand-up comedy? If two words are untrue in a 1,000-word essay, will the entire article be deemed fake news?

Particularly worrying, Clause 2 indicates all fake news is an offence – even if the news doesn't threaten national security. Does this mean the April Fools' Day stories published annually by newspapers will constitute fake news and be prohibited?

PKR MP N. Surendran claims the AFN contravenes the Federal Constitution and is thus invalid.

"Article 10(1)(a) guarantees freedom of speech. Article 10(2)(a) only allows restrictions to freedom of speech which are necessary for the purposes of public order," Surendran says.

"Because the AFN Bill regards any false news as an offence, even if it doesn't threaten public order, it will run foul of Article 10(2)(a) of the Federal Constitution."

Also breath-taking is the AFN's extra-territorial reach. Under Clause 3, a Malaysian or a foreigner commits an offence – even if the act takes place outside this country – if the fake news concerns Malaysia or the victim of the alleged fabrication is a Malaysian.

Does this mean The Economist and South China Morning Post could be prosecuted for publishing fake news?

Clause 5 makes it an offence to directly or indirectly provide financial assistance that facilitates the spread of fake news or to collude in its dissemination.

Will this mean Malaysiakini subscribers or donors who contribute to pay the fines levied on PKR strategist Rafizi Ramli can also be penalised under the AFN if the news portal and the Pandan MP are found guilty of fake news?

Clause 7 states a person affected by the fake news can apply to the court to remove its publication on an ex parte basis. This means the judge hears only the applicant and judgment is given based only on one party's testimony.

Isn't this procedure contrary to the norms of natural justice where a defendant should be given the right to be heard and the court should hear both parties before delivering judgment?

Additionally, Clause 8 (3) states if the government applies for a court order to withdraw the offending article because the fake news is prejudicial or likely to be prejudicial to public order or national security, this order cannot be challenged.

"We are gravely concerned in allowing one party to have unquestionable power to remove articles it disagrees with could be easily abused," National Union of Journalists general secretary Chin Sung Chew said in a statement.

Exacerbating concern about a potential abuse of power is Deputy Communications and Multimedia Minister Jailani Johari's statement recently that anything other than government-verified news on wealth fund 1Malaysia Development Berhad will be classified as fake news.

Barisan Nasional leaders should note this iconic story about role reversal: A courtier obtained a secret imperial order to execute a hated executioner. Asked by the courtier how to extract a confession from a stubborn individual, the executioner advised using a pot of boiling oil.

When the pot of boiling oil was brought before the two men, the courtier showed the signed imperial decree to the executioner and said: "Please step into the pot of oil."

Opinions expressed in this article are the personal views of the writer and should not be attributed to any organisation she is connected with. She can be contacted at siokchoo@thesundaily.com