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‘Fake news’ may soon be illegal in Malaysia. Who gets to define it?

A commuter walks past an advertisement discouraging the spread of fake news at a train station in Kuala Lumpur on March 29. (Vincent Thian/AP)

Lawmakers in Malaysia may soon vote to approve a “fake news” law that human-rights groups and experts say would significantly curtail freedom of expression and democracy in the country. It would subject both journalists and ordinary Internet users to up to six years in prison for disseminating content that the state deems misleading.

“This is going to have a major impact on citizens and freedom of expression. It essentially allows the state to define what is true and what is false. That is a very frightening prospect,” said Syahredzan Johan, a civil liberties lawyer in Kuala Lumpur, who has closely followed the restriction of democratic space in Malaysia in recent years.

The legislation uses the English-language phrase commonly employed by President Trump. “It's odd, because the term 'fake news' was popularized by the U.S. president and is not a legal designation by any stretch of the imagination, but we have now made it into a legal concept,” Johan said.

The bill defines “fake news” as any news, information, data or report that is “wholly or partially false.” This also applies to images and audio, including content created by anyone, anywhere in the world, that affects Malaysia. Under the proposed law, the government could prosecute someone even without offering any evidence that the alleged falsehood caused harm. Also, Malaysian law allows police to make warrantless arrests in certain circumstances.

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On Thursday, Prime Minister Najib Razak's government made small changes to the legislation, including reducing the maximum jail penalty from the originally proposed 10 years to six. But the modifications did not substantively address the harsh criticism leveled by international organizations.

“The vague and broad definition of ‘fake news’, combined with severe punishments and arbitrary arrest powers for police, shows that this is nothing but a blatant attempt to shield the government from peaceful criticism,” James Gomez, director of Southeast Asia and the Pacific at Amnesty International, said in a statement. “The Bill combines the worst of the cheap propaganda coming from the West and the repressive laws and policies in the East. With both Singapore and the Philippines considering their own ‘fake news’ legislation, we call on all countries in the region to refrain from following this dangerous trend.”

On Thursday, Human Rights Watch also issued a statement.

Representatives of Najib, who is facing reelection this year, did not respond to requests for comment.

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Malaysia is a constitutional monarchy with an elected Parliament, and Islam is enshrined in the constitution as the official religion of the Malay people, who make up about 60 percent of the population and are subject to some penalties based on interpretations of sharia law. The country's sizable ethnic Chinese and Tamil-speaking minorities are treated differently under the law, but the “fake news” measure would apply to everyone equally, including citizens of all other countries and Malaysians abroad.

The lower house of Parliament, which is controlled by a majority aligned with Najib, is expected to vote on the measure in the next few days. The legislation would then head to the Senate, a mostly unelected body, and, eventually, King Muhammad V for approval. The law could be in place within weeks, experts say, meaning it could be used during the upcoming campaign.

Since taking power in 2009, Najib's government has been dogged by scandal, the most infamous involving large-scale malfeasance at the 1MDB state investment fund. He was reelected to a second term in 2013 with fewer votes than his opponent, and the poll was marked by accusations of gerrymandering and protests. Since then, the government has restricted criticism, especially online, in several ways, said Bridget Welsh, a professor of political science and Malaysia specialist at John Cabot University in Italy.

“The government paid cyber-soldiers, or trolls, to go online and shape the discourse, and they have cracked down on artists and cartoonists using humor to criticize the government,” Welsh said. “There's been a further clampdown in the run-up to this very contentious election, and the fake-news law is part of the government's arsenal to keep itself in power.”

Bevins reported from Jakarta, Indonesia. King Chai Woon in Kuala Lumpur contributed to this report.

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