Non-governmental organisation Human Rights Watch on Saturday (13 Mar) urged Malaysian authorities to revoke its ‘fake news’ ordinance, citing possible abuse of data pertaining to communications and the dissemination of information regarding the COVID-19 pandemic and the state of Emergency.
Under the Emergency (Essential Powers) (No. 2) Ordinance 2021, which was gazetted last week without any public consultation, the police have the authority to compel internet service providers to surrender traffic data such as the origin of communications, as well as their destination, route, time, date, size, and duration.
Such data may give an insight into an individual’s behavior, social relationships, private preferences, and identity, which raises serious privacy concerns, and should only be permitted when provided by law, proportionate, and necessary for the protection of legitimate state interests, said HRW.
“The new ordinance, which places no meaningful limitations on the purposes for which authorities may request such data or how long the authorities may require it to be stored, does not meet this standard and could lead to indiscriminate surveillance,” HRW said.
The scope of the law is also highly wide-ranging, as it is applicable against all Malaysian citizens around the world. Police are also empowered to access traffic data and “computerised data” upon request towards individuals, corporations, and social media platforms.
It also permits corporate directors and other executives to be held criminally liable for company actions and overrides the existing rules of evidence, which may affect the chances of accused parties having a fair trial.
The ordinance also imposes sentences of up to three years in prison for the creation, publication, distribution, or dissemination of “fake news” that is “likely to cause fear or alarm to the public”.
HRW stated that the ordinance fails to establish standards for determining what is false, raising the risk that it could be used to silence dissenting and critical voices against the government.
“It’s mystifying why the Malaysian authorities, roundly criticised around the world for a now repealed ‘fake news’ law, would resurrect this discredited idea,” said Linda Lakhdhir, Asia legal advisor at HRW.
“The new ordinance contains much that was wrong with the old law and will stifle much-needed discussion of the pandemic and how it has been handled by the Malaysian government,” she added.
It also allows criminal punishment without requiring that the person or company disseminating the “false” information knew that it is false, thus putting at risk those who share information believing it is true, or those who make critical comments based on a misunderstanding or misinformation.
“Under international human rights law, governments have an obligation to protect the right to freedom of expression, including the right to seek, receive, and impart information of all kinds,” HRW pointed out.
“Governments may only impose restrictions — which must be written sufficiently clearly that those subject to the law can understand what is prohibited — on freedom of speech if those restrictions are provided by law and are strictly necessary and proportionate to achieve a legitimate aim, including the protection of national security, public order, public health or morals, or the rights of others,” it said.
HRW stated that the new ordinance falls far short of these standards, as not only does it fail to require that the “fake news” be material and cause real harm to a legitimate interest, it also does not clearly define the prohibited content.
The resulting lack of clarity will chill discussion of the proclamation of Emergency, the COVID-19 pandemic, and the government’s handling of that pandemic, out of fear of prosecution, the organisation said.
In trials under the ordinance, some of the usual restrictions imposed on the admissibility of documents and statements by the accused in Malaysia’s Evidence Act do not apply, raising concerns about due process and the right to a fair trial.
In addition, HRW highlighted that the emergency ordinance does not make clear whether a court-authorised warrant is required for disclosure of data — password, encryption code, decryption code, software or hardware and any other means required to enable comprehension of computerised data — nor does it require notifying the person whose communications have been decrypted.
“Given the serious penalties involved, Malaysia’s new ordinance will make ordinary people fearful of discussing COVID-19 and the Emergency proclamation,” Lakhdhir said.
“With its ill-defined terms, the ordinance is ripe for abuse. The government should revoke this ill-considered ordinance and counter misinformation about COVID-19 with accurate information, not criminal prosecutions,” she concluded.