COVID-19 and Fake News – A Legal Perspective

The Author is an Accredited Chief Integrity Officer (AceIO) with the Malaysian Anti-Corruption Academy (MACA). He was also the Chief Integrity Officer and Head of Legal and Secretarial of the Iskandar Regional Development Authority. The writer can be contacted at: jeceeb@yahoo.com

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The rapid spread of COVID-19 pandemic throughout the world is perhaps comparable to the equally fast widespread of online news and messaging, mainly through the internet and a variety of social media channels such as Instagram, Facebook, Twitter and WhatsApp.

With the Malaysian Control Order (MCO) in place, Malaysians have no choice but to remain confined to their homes, with many not only sitting glued to their TVs, but also to their mobile phones and computers for the latest updates.

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However, while the local TV Channels and news outlets, including international media outfits such as the BBC, Al-Jazeera, Channel News Asia and US based news organisations such as CNN have been giving an in-depth coverage of the latest on the pandemic, the opposite can be said of social media feeds and group chats.

This has equally reached “pandemic” proportions, to say the least, and it is quite common to receive more than 500 WhatsApp messages daily. While some are newsworthy, 60-70% is for entertainment and of no value at all.

Not forgetting that some of the messages received are fake news. During normal times, these could perhaps be taken lightly with a pinch of salt, provided they are not defamatory.

However, during the COVID-19 outbreak and implementation of the MCO since 18th March 2020, forwarding defamatory and fake news can certainly trigger panic and fear among Malaysians.

To overcome this, the National Security Council has created its own information channel in social chat Telegram – Majlis Keselamatan Negara (Rasmi) while the Ministry of Health has its own called Covid_19 Kementerian Kesihatan Malaysia – so that Malaysians can rely on true news instead of unreliable messages from friends and non-trusted channels. Even the Malaysian Communications and Multimedia Commission has a link t.me/sebenarnyamy for the public to verify the truth.

The government has created these channels to deny publishing of fake news items on the social media. For instance at 3pm on 12th April 2020, there were two denials of fake news – one involving Beaufort Hospital in Sabah and another on the Bangi Health Clinic.

Faced with this widespread dissemination by irresponsible people, sometimes with no malice but just for the fun of being bored at home, it must be reiterated that the laws against spreading fake news are very strict.

Some may say that such laws curb freedom of expression in Malaysia, where it is a Constitutional right guaranteed under the Federal Constitution.

Article 10 of the Federal Constitution absolutely guarantees Malaysian citizens the right to freedom of speech, freedom of assembly and freedom of association.

Despite this, there is a need to curb fake news online, as the reach of a single such item can cause fear, panic and reach thousands of readers just at the click of a key pad. This is especially so during current times, where spreading fake news during the Covid-19 pandemic is the last thing anyone would want.

The Communications and Multimedia Act 1998 (CMA), Penal Code and Evidence Act 1950 are among the laws that are most relevant against perpetrators of fake news on social media.

Among the laws most commonly used is the CMA 1998 that wields the most power in Malaysia against offenders on the social media.

This Act has jurisdiction over all networked services and activities, including broadcasting and the internet.

Some of the key sections of this law are:

a) Section 263(2) which grant the Minister and/ or Commission the power to block access to online news portal or website on matters of national interest.

b) Section 211 prohibits provision of offensive content – this provision criminalises applications service provider or a person using a content applications service who provide content that is ‘indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person’.

This provision implies that the authority makes internet intermediaries responsible for content that is deemed illegal, and forces them to remove such content.

Power to arrest, investigate and conduct search and seizure

c) Section 233 prohibits the misuse of network facilities or network services. This provision empowers MCMC and the police to act against internet ‘abuse’.

This section is being commonly used by the Authorities together with the Penal Code to investigate distribution of fake news on the internet.

d) Section 246 gives the power to investigate to MCMC or authorised officers empowered by Criminal Procedure Code and,

e) Section 248 enables MCMC officers or any enforcement officers authorised by the Minister to conduct searches and seizures with or without warrant – Power to request data and access to computers.

As mentioned above, Section 233 of the CMA 1998 is a powerful section to deal with offenders distributing fake news. Section 233 makes it an offence to use a network service or app for improper purposes;

CMA 1998 – Section 233 in part

(1) A person who—

(a) by means of any network facilities or network service or applications service knowingly—

(i) makes, creates or solicits; and

(ii) initiates the transmission of,

any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; ……

commits an offence.

This includes posting defamatory remarks on social media. The penalty for such an offence is a fine up to RM50,000, 1 year jail, or both.

The most recent case investigated under this section is of a Member of Parliament over a social media posting ostensibly depicting people storming Immigration facilities in Johor.

This was in a video clip surfaced depicting the Sultan Iskandar Building (CIQ Complex) in Johor Bahru turning chaotic after large crowds of Malaysians returned home from Singapore.

The Facebook page later carried a note where the “administrator” apologised for posting an old video clip.

Bukit Aman Criminal Investigation Department director Huzir Mohamed said the gadget used to upload the posting has been seized and that the case is being investigated under Section 500 and Section 505(b) of the Penal Code for slander and causing public fear, and Section 233 of the Communications and Multimedia Act 1998 for the improper use of network facilities or service.

The Penal Code 

The Penal Code is used to regulate criminal defamation, criminal intimidation, intentional insult with intent to provoke a breach of peace and statements which include speech, publication or circulation of speech, rumour or report with intent to cause public mischief.

The Penal Code, for example, codifies most criminal offences and procedures. This includes articles such as Article 500 which provides the punishment for defamation.

Article 501 (for printing or engraving that is defamatory) and Article 502 for the sale of printed or engraved substance containing defamatory matter.

a) Section 504 criminalises a person who insults with intention or knowingly that his/ her insult will provoke any person to cause a breach of peace or commit any offence. This offence is punishable with up to two years imprisonment or fine or both.

b) Section 505(b) punishes any person who makes, publishes or circulates any statement, rumour or report with intent to cause, or likely to cause fear or alarm to the public.

The Evidence Act 1950

S114A of the Evidence Act reverses the burden of proof where the presumption of publication is placed on any person whose name is published as owner, host, administrator, editor or sub-editor; a person who is registered with a network service provider or a person who has in custody or control of any computer where publication originates.

Looking at existing laws such as the Penal Code and Communications and Multimedia Act (CMA) 1998, is there a need for re-introducing the Anti Fake News Act (AFNA)?

It is suggested that the Penal Code and CMA 1998 already have wide powers of prosecution; therefore, any such new law would only further curb freedom of expression enshrined under Article 10 of the Federal Constitution.

It must be remembered that the AFNA had a short life in Malaysia. It came into force on 9th April 2018, criminalising fake news.

Malaysia however scrapped the Act on 9th October 2019, after 92 MPs voted for the law to be abolished, while 51 were against it. The Bill was then tabled in the Dewan Negara, before Royal assent.


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