A Practical Guide to Malaysia's Anti-Fake News Act

Key Takeaways

• Malaysia’s Anti-Fake News Act is in effect and being enforced
• The Act applies to the publication of information in any form which is wholly or partly false
• Media companies, whether “traditional” or online media, should review policies and processes to avoid inadvertently falling foul of the requirements.

Introduction

The term “fake news”, used to describe fabricated news or misinformation in the media, has attracted much attention recently – not only as used by President Trump to refer to certain media outlets but also by policy-makers around the world, who are weighing up whether and how to regulate it. One of the first countries in the world to introduce specific legislation is Malaysia, which introduced its Anti-Fake News Act on 11 April 2018. In this post, we look at what the Act requires and what it means for media companies.

What is the Anti-Fake News Act?

Malaysia enacted the Anti-Fake News Act 2018 on 11 April 2018. The Act has implications for anyone who publishes or distributes, or facilitates the publication or distribution of, news or any kind of public information. In particular, media companies – both traditional media outlets such as print, TV and radio, as well as online media and social media platforms – should be aware of the Act and its implications for the company’s practices. Failure to comply may attract hefty penalties for the company and its directors.

How is “Fake News” defined?

Under the Act, it is an offence to maliciously create, publish, distribute or otherwise disseminate “fake news”. This term is broadly defined to include any news or information in any form, which is wholly or partly false. The Act provides a non-exhaustive list of examples of offences under the Act, including:

• Publishing a statement on your social media account that a food product contains harmful ingredients and is being sold to the public, knowing that the food product has been discontinued and is no longer sold to the public
• Publishing an advertisement containing a caricature depicting someone as a successful investor in an investment scheme, knowing that person is not involved in the scheme
• Giving a speech at a public forum saying that someone has misappropriated moneys collected for charitable purposes, knowing that this is not true
• Holding a press conference claiming that the owner of supermarket will give out free gifts to customers on the first Saturday of each month, knowing that the owner has no intention to do so.

The broad application of the Act extends beyond the reach of existing defamation laws (which generally require proof of damage to one’s reputation) and media laws such as the Printing Presses and Publications Act (which only governs print media) in Malaysia, and has raised concerns that the Act may be used to stifle political opinions or otherwise hinder free speech. The Act carries penalties of fines up to RM500,000 (~USD 127,000), imprisonment for up to six years, or both.

What is the territorial scope?

The Act applies to anyone, regardless of their location or nationality, if the news concerns Malaysia or affects a Malaysian citizen. In practice, as with any extra-territorial legislation, enforcement against individuals and organisations that have no presence in Malaysia is likely to be limited, at least in the short term.

What does it mean for media platforms and publications?

The Act requires anyone who possesses or controls a publication or platform containing fake news to immediately remove the publication after knowing or having reasonable grounds to believe that it contains fake news. This means that news media companies, social media platforms or, for example, any company which disseminates or facilitates the dissemination of content, could be caught by the requirements of the Act. A company’s officers may also be liable unless they can prove that the offence was committed without their knowledge, or without their consent where they had taken all reasonable precautions and exercised due diligence to prevent the offence.

Is the Act being enforced?

Yes. Within weeks of its enactment, Malaysian courts had convicted the first individual under the Act. On 30 April, Danish national Salah Salem Saleh Sulaiman, was convicted for creating and publishing a YouTube video where he inaccurately accused Malaysian police of taking 50 minutes to respond to calls after a shooting in Kuala Lumpur on 21 April. In fact, police had taken eight minutes to respond. The charge against Sulaiman said he had “with ill intent, published fake news through a video on YouTube”. Sulaiman was fined RM10,000 but chose to spend a month in jail because he was unable to pay.

The case confirms the broad definition of “fake news” to include partially false information, as well as the Act’s application to an individual’s publication of content on social media sites such as YouTube and not just to traditional media outlets. The case also highlights Malaysian authorities’ willingness to enforce the Act against foreign nationals – noting, however, that Sulaiman was physically in Malaysia at the time, so it remains unclear whether authorities would be willing to extradite foreign nationals.

What do organisations need to do to comply?

While the full reach of the Act and its application are yet to be seen, its enactment and the recent enforcement are a warning to both individuals and companies that distribute, or facilitate the distribution of, news or information relating to Malaysia. Affected organisations will therefore want to consider the following as part of a broader content compliance strategy:

• Updating editorial policies and reporting guidelines, to the extent required, to provide clear rules on the publication or dissemination of “fake news”, as defined under the Act
• Informing and educating journalists and employees about the new legislation and its application
• For social media platforms, ensuring terms of use and takedown policies deal with fake news, so as to avoid platform liability for third party content
• Reviewing verification and monitoring practices and considering adopting technology or algorithms to help identify fake news – again, this may help minimise the risk of platform liability for third party content

What’s next?

The Act is already in effect and being enforced. There are no “grace periods” for compliance, so organisations will want to act now to avoid inadvertently falling foul of the new requirements. Meanwhile, although Malaysia was amongst one of the first countries to introduce such a law, it seems unlikely that it will be the last. Media companies across Asia-Pacific will need to watch carefully as other countries consider regulating fake news. For example, Singapore’s Parliamentary Select Committee is continuing to consider rules addressing “deliberate online falsehoods”, following public hearings in March which included representatives from media and technologies companies such as Google and Facebook.