Fake News Ordinance Is Nail In Coffin For Free Speech Lawyers

---

 


Concerns have been raised that the latest ordinance aimed at combating “fake news” on Covid-19 or the emergency proclamation will be used to silence critics and curtail fundamental freedoms.
Not only does the ordinance grant the government wide-ranging control over speech, but it also allows action to be taken on those who fund the publication of such news.
With harsh penalties, a broad definition of “fake news”, and sweeping powers, senior human rights lawyer Honey Tan foresees an ominous impact.
“This is another nail in the coffin as far as press freedom and freedom of speech are concerned.
“It comes so closely after the recent Malaysiakini contempt of court case, where it was fined RM500,000,” Tan said when contacted.
The Emergency (Essential Powers) (No 2) Ordinance 2021 came into effect today.
Those found guilty of spreading “fake news” related to Covid-19 or the emergency proclamation in a variety of media can now be fined up to RM100,000 or be imprisoned for up to three years, or both.
Funders beware
Tan pointed to Section 5 of the ordinance, which concerns those who “directly or indirectly” provide financial assistance with the knowledge that the money will be used to publish what is deemed as “fake news”.
Offenders can be fined up to RM500,000 or imprisoned for up to six years or both.
“Funders beware. In a situation where funders give money to NGOs, Section 5 provides that they may also be charged if they have reasonable grounds to believe that their funds will be used to commit the offence...
“It is unclear what will satisfy the test of ‘reasonable grounds to believe’ in these circumstances. As the ordinance has an extraterritorial application, foreign funders too will be open to criminal prosecution,” Tan declared.


The repealed Anti-Fake News Act 2018 bears many similarities to the latest law, including this section targeting funders.
Under the ordinance, the court in Malaysia can order for an offending publication to be removed. It also overrides the Evidence Act 1950, applies to anyone domestically and abroad, as well as grants the authorities access to all passwords, data and hardware. Seizures can be made without a warrant.
An ordinance does not need to go through Parliament as it is made using emergency powers. Unlike an ordinary law, it cannot be challenged in court.
Used to intimidate critics
Lawyer Lim Wei Jiet concurred with Tan that the ordinance will have a chilling effect on press freedom and freedom of speech.
Lim is worried that it would be used against those who demand accountability from the government.
“For example, the media will now be hesitant to report important news, such as VIPs unfairly getting vaccines ahead of frontliners, because they fear it may cause the government to be unhappy and retaliate using this law.
“Or the fact that politicians are now gagged from saying anything critical of the emergency because it can be deemed as ‘fake’.
“The slippery slope is endless and dangerous,” he told Malaysiakini.

Lawyer Lim Wei Jiet
Lim is a founding member of the Malaysian United Democratic Alliance (Muda).
Fellow legal practitioner Azira Aziz noted that the ordinance grants the government, through deputy public prosecutors, the power to decide facts from falsehoods.
If the government decides the offending material is “prejudicial or like to be prejudicial to public order or national security”, the ordinance bars any attempt to set aside the court order that requires the material be removed.
“No legal action can be taken against the government, which gives rise to severe human rights violations if the police abuse their power or when things go wrong during raids,” Azira said.
Aside from foreign funders, she is also concerned that the extra-territorial provision allows the ordinance to be used against Malaysians, no matter where they are.
“It applies internationally, which makes it applicable to overseas Malaysians. This clearly is intended to intimidate and silence most forms of dissent,” she said.
Affects privacy, fair trial
By giving government agencies the powers to make accused entities surrender their private data, Azira is very worried about the misuse of powers.

Lawyer Azira Aziz
“This is a cause of alarm for privacy and possible data mining or data fishing by government agencies...
“This is open to so much abuse, not to mention if used against a technology giant, it would lead to leaks of confidential data under Intellectual Property laws,” she pointed out.
Tan then zoomed in on Section 10 of the ordinance, which allows authorities to override the Evidence Act.
She is concerned that this provision would prejudice the accused from a fair trial.
“(This provision) means that any statement made by any person who cannot be found on the day of trial may still be used.
“Normally, the maker (of the statement) is called as a witness and then the statement is marked as an exhibit. If they are not there, the lawyer for the accused cannot cross-examine the witness.
“Cross-examination is the tool lawyers use to challenge the oral evidence given by the witness to get to the truth. This provision will seriously impinge on the right of the accused to a fair trial,” she remarked.

Legal aid NGO Lawyers for Liberty (LFL) shared their concerns over data privacy and fair trial.
“We again sternly remind the government that a state of emergency is not a licence to arbitrarily legislate laws.
“They are at all times bound by the provision of the Federal Constitution and must specifically be cognisant of Article 150 (2B) that limits the enactment of any ordinance to only when there exist circumstances that necessitate its immediate creation,” LFL coordinator Zaid Malek said in a statement today.
The ordinance has come under fire since it was made public last night.
The Bar Council, Centre for Independent Journalism, media rights group Geramm, opposition MPs, and Malaysians online have all condemned Perikatan Nasional for clamping down on freedom of speech. - Mkini

---