Malaysia’s Anti-Fake News Act (AFNA): Review & Analysis

By Edika Amin & Alex Nnamchi, 19 May 2019

During last month’s Malaysia-Singapore Leaders’ Annual Retreat, Malaysian Prime Minister Mahathir Mohamad reiterated his pledge to continue efforts in repealing the country’s Anti-Fake News Act (AFNA). Having promised this during the 2018 elections, Mahathir’s government has so far struggled to repeal the controversial law one year after taking power. Meanwhile, his Singaporean counterpart, Lee Hsien Long, had taken a different route, having passed his country’s own fake news bill. Despite previous hurdles, Mahathir remains determined to keep his overdue promise.

The Anti-Fake News Law at a glance

Created by the previous Barisan Nasional government, Malaysia’s Anti Fake News Act came into force on 11 April 2018, less than a month before Malaysians were set to go to the polls. The Act:

1. Defined fake news as “news, information, data and reports which are wholly or partly false”.
2. Made it an offense for someone to knowingly create, publish or disseminate any fake news or publication containing fake news. If found guilty, offenders could either face fines of up to USD$130,000 or up to six years imprisonment, or both.

While the AFNA provides for certain offences and measures to curb the dissemination of fake news which threatens the country’s security, economy, prosperity and well-being of the people. AFNA, however, does not prescribe the criteria or the threshold to determine what is considered false. This is left to judicial interpretation.

Why the AFNA is irrelevant

In principle, any law that constrains the flow of information hinders free speech. Prior to the enactment of the AFNA, Malaysia already had the means to deal with hate speech, disinformation and misinformation. This is done through existing laws such as the Penal Code, Printing Presses and Publications Act 1948 and the Communications and Multimedia Act (CMA) 1998 which ultimately deems the AFNA irrelevant.

What happens next?

In August 2018, the Pakatan Harapan (PH) Government managed to pass the Repeal of the AFNA in the House of Representatives. However, the Repeal Bill was rejected by the opposition dominated Senate in September 2018. Fortunately, the rejection of the Repeal Bill by the Senate does not close the doors for repealing the AFNA.

Repealing the AFNA is a must for PH, given that they have failed to deliver on a number of election promises (which includes the repeal of AFNA). Given the circumstances, this seems to be a low hanging fruit for PH to accomplish.

There are now two possible outcomes:

1. First, under Article 68 of the Malaysian Constitution, the House of Representatives has the ability to re-table the Repeal Bill with further amendments for the consideration of the Senate after one year. At this point, any Senate amendments or rejection of the bill can be overridden with a direction to the Malaysian Head of State to grant assent; or
2. PH could choose to amend the existing AFNA instead of repealing it entirely.

Moving Forward

This provides a fresh opportunity in Malaysia to restore a genuine multi-stakeholder approach in the fight against hate speech, disinformation and misinformation; spearheaded by both Regulators and Industry. This can be done through:

1. Transparency from the Industry: Industry should provide Regulators with publicly available data that captures the proactive measures that are already being undertaken.
2. A local’s touch: In return, Regulators can furnish the Industry with local perspective and terms that constitutes to hate speech to help improve current surveillance activities.
3. Digital wellbeing initiatives: Regulators and Industry can show their cooperative commitment by organizing workshops to empower user responsibility through digital literacy, fact-checking and ‘how to define false news’ programs.