Malaysia government faces backlash over harsher penalties, wider powers proposed to tackle harmful online content

KUALA LUMPUR: Malaysia’s new amendments to laws governing the internet – which include penalties several times harsher than current provisions – have been panned by civil society groups and experts, who say the changes could be seen to include a backdoor attempt to legislate a “fake news” law.   

On Dec 2, Communications Minister Fahmi Fadzil tabled in parliament proposed changes to the Communications and Multimedia Act (CMA).

The proposed penalties include fines of up to RM1 million and imprisonment of up to 10 years for offences that currently incur fines of RM300,000 and prison terms of up to three years.

According to news portal Scoop, the harsher punishments could apply to 25 violations, with nine additional offences introduced. 

For example, a conviction under Section 233, which deals with improper use of the internet, could lead to a fine of RM500,000 and imprisonment of two years, up from a fine of RM50,000 and a year’s jail currently. 

The new offences include non-cessation of an activity where a class licence – a licence to operate a telecommunications network or service – has been cancelled. Offenders could be fined up to RM500,000 and jailed for up to five years.

Other proposed amendments are seen to give the Malaysian Communications and Multimedia Commission (MCMC) more powers without oversight, with critics saying this enables the commission to control and allow censorship. 

The government previously said that the amendments to old laws and the introduction of new ones were to curb online harms such as online gambling and scams, cyberbullying and sexual crimes against children.

The amendment to the law is expected to be debated in parliament next week. 

Dr Benjamin Loh, a senior lecturer in media and communication at Taylor's University, told CNA that the proposed changes were “horrific”.

“These changes are quite horrific and beckon a return to a more oppressive state where not just media freedoms but personal freedoms are stripped away as government enforcers will be given excessive power to punish, search and monitor the media and even private citizens,” he said. 

Under the proposed Section 73A, for instance, MCMC and its authorised officers and agents are given the power to search and seize information from service providers without safeguards such as the protection of journalistic sources, noted civil society groups Article 19 and the Centre for Independent Journalism (CIJ).

“Many of the proposed crimes and infractions are worded in very abstract and unclear forms, leaving much room for interpretation, which in Malaysia's history has allowed the government to administer (them) selectively and with little recourse to challenge,” added Dr Loh.

Article 19 and the CIJ also cited the proposed Section 51A, which gives the MCMC or anyone acting on its behalf immunity from court action when acting “in good faith”.   

“This ouster clause, which includes a vague and arbitrary notion such as ‘good faith’, would enable abuse of powers and create an accountability gap for human rights violations, allowing for impunity for those public officials,” they said in a statement on Dec 3.

“Furthermore, the possibility of arbitrary investigation without access to a remedy violates due process, fair trial and access to justice rights,” they added.  

Both groups were also concerned about the proposed penalties. 

“No rationale is provided to support the amendments for increasing sanctions, nor is there a clear justification for the quantum adopted in determining the threshold of fines and imprisonment,” they said.

CNA has reached out to Mr Fahmi about the harsher penalties tabled and the criticism levelled at the government.

On Wednesday (Dec 4), the minister received a memorandum from a group of activists and journalists who oppose amendments to the Printing Presses and Publications Act (PPPA), CMA and other related laws.

Mr Fahmi said the government is committed to listening to the stakeholders when it comes to policy.

"We want to make sure that as far as any amendments to the law are concerned, (that) we ... hear from as many people as possible so that we can take a judicious and balanced approach going forward," he was quoted as saying by The Star.

PROPOSALS INCENTIVISE REMOVAL OF CONTENT, SAY CIVIL SOCIETY GROUPS

The proposed amendments also come as authorities push forward with a plan to further regulate Big Tech and social media in the country, reintroduce an annual licensing scheme for media publications and extend laws to online media.

On Jul 27, the government announced that all social media and internet messaging platforms with at least eight million registered users in the country must apply for a class licence from 2025 or face penalties.

Civil society groups have panned the unity government led by Prime Minister Anwar Ibrahim for going back on its promises to review and repeal laws that restrict free speech. Mr Anwar took power after the 15th General Election (GE15) in November 2022. 

“Instead, the government has introduced further rights-restricting amendments. Over the years, the government has continued to abuse and weaponise the CMA to restrict freedom of expression,” Article 19 and the CIJ asserted.

The introduction of a licensing regime for social media companies in the CMA and the imposition of strict liability on service providers for user-generated content risk incentivising the removal of content, undermining freedom of expression online, they added.

“Registration requirements constitute an interference with the right to freedom of expression,” they said. 

DEFINITION OF FALSEHOOD COULD HAVE CHILLING EFFECT, SAYS LAWYERS FOR LIBERTY

The government has said previously its moves are intended to tackle online harms like fake news, scams and sexual crimes.

According to DataReportal, Malaysia was home to 28.68 million social media users in January 2024, making up 83.1 percent of the country’s total population.

But the human rights group Lawyers for Liberty said the proposed laws include a backdoor attempt to re-introduce “fake news” legislation. 

In 2018, the Barisan Nasional government led by then-prime minister Najib Razak had enacted a Fake News Act, but it was repealed a year later.  

Mr Zaid Malek, the director of Lawyers for Liberty, said in a statement on Wednesday (Dec 4) that the government has gone back on its promise to repeal Section 233 of the CMA and has instead chosen to strengthen it.

“This can be seen from the insertion of the explanation to the word ‘false’, where content or information which are ‘confusing’ or ‘incomplete’ or ‘untrue’ would be considered an offence under Section 233(1)(a), which would carry a fine up to RM500,000 or imprisonment for up to two years, if the proposed amendments were to pass,” he said.

“The inclusion of ‘confusion’ and ‘incomplete’ in the definition of falsehood here massively widens the offence. It will put fear upon the public and prevent them from participating in discussions regarding matters of public interest. It would have a chilling effect on freedom of speech,” said Mr Zaid.

Mr Zaid said that this, for example, would mean that allegations of corruption, abuse of power or general criticism of the government cannot take place unless the public has the complete and full facts of every aspect of any matter or allegation.

Civil society groups urged the government to delay the second reading of the bill until further stakeholder consultations.

“Although Malaysia might impose limitations to protect legitimate interests such as national security and public order, such restrictions must be narrowly defined, evidence-based, and proportionate. 

“The proposed amendments fall short of these standards and represent a concerning step backwards in protecting human rights in Malaysia,” said Article 19 and CIJ.