The Fake News Pandemic?

In the midst of the COVID-19 pandemic, the spread of fake news related to the disease has been rampant, especially since the Movement Control Order (MCO) was imposed. This has raised serious concerns as such fake news can be detrimental to the public at large.  

In light of this, the authorities have urged the public to stop spreading fake news on social media such as Facebook and instant messaging services like WhatsApp.  At some point throughout the MCO, you would have received some form of forwarded message from an uncle or aunt about some magical cure or an “official announcement” regarding COVID-19.

There has been an over-abundance of information, which the World Health Organization (WHO) has classified as an ‘infodemic’. It has also been reported that there has been a spike in the numbers of cybercrime incidents such as the increasing spread of fake news, cyberbullying and cyber attack on hospitals’ critical information systems. At least 266 people all over 10 Asian countries, from Thailand to India and Mongolia, have been arrested for posting coronavirus-related information.

Since 25^th January 2020 until 1^st April 2020, the Royal Malaysian Police Force has opened 40 investigation papers in connection with fake news about COVID-19 on social media. So, let’s have a look at some of these cases which have resulted in some prosecution and/or punishments.

The first case involves an Indonesian woman who was sentenced to one week in jail and fined RM 1,000.00 by the Magistrates Court for spreading fake news about COVID-19 on her Facebook account. There was also another instance which involves a well-known TV personality who was thrown in jail because he posted a video about his ‘criticism’ of a certain hospital’s handling of the pandemic.

There is also a case concerning a senior citizen who was also given a fine of RM2,000.oo by the Magistrates Court for forwarding a message in a WhatsApp group. The message alleged that an acquaintance who was part of the tabligh cluster, tested positive for COVID-19 but refused to seek medical treatment was deemed to be a statement likely to cause public mischief.

All the cases were charged under Section 505 (b) of the Penal Code (“PC”) for statements likely to cause public mischief. Section 505 which provides as follows:-

505. Whoever makes, publishes or circulates any statement,

(b) with intent to cause, or which his likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity;              

shall be punished with imprisonment which may extend to two years or with fine or with both.

Exception—It does not amount to an offence within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it without any such intent as aforesaid.

Apart from the Penal Code, there is also the Communications and Multimedia Act 1998 (“CMA 1998”) which was enacted to deal with abuses and/or offensive use of the internet. The CMA 1998 also provides for a number of offences and/or prohibition in relation to the use of the internet. These are explained below.

Section 211(1) of the CMA 1998 prohibits a service provider or other person from using a content application service to provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.

Section 233 (1) of the CMA 1998 makes it an offence for a person:

1. to make, create or solicit communication via network facilities or network service or applications service which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or

2. to initiate a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address.

What are the Possible Punishments?

Section 211 of the CMA 1998 provides for the punishments for improper use of network facilities or services. They are as follows:-

1. fine up to RM50,000; or
2. imprisonment not exceeding one year and further fine of RM1000 for each day that the continuance of that offence after the offender had been convicted by the court.

Whereas Section 505(b) of the Penal Code provides for the following penalties:-

1. maximum jail term of two years; or
2. imprisonment with fine; or
3. both

What constitutes “indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass” under Section 233(1)? 

In interpreting this provision, the Courts must strike a balance between freedom of speech and the harm that may occur if such freedom is uncontrolled.

In the case of Mohd Fahmi Reza bin Mohd Zarin lwn Pendakwa Raya [2020] 7 MLJ 399 (High Court), the Appellant was charged under Section 233(1)(a) of the CMA 1998 for sending false communications with intent to injure others by way of uploading a caricature image of the former prime minister, Datuk Seri Najib Razak on his Facebook account. The Sessions Court sentenced the appellant to one-month jail and a fine of RM30,000.00.

The Appellant then appealed to the High Court. The High Court held that under Section 233, the prosecution must prove the following three elements:

1. the appellant has used his Facebook page application to upload the communication;
2. the communication is false in nature; and
3. the communication was uploaded with intent on the appellant’s behalf to injure the other person.

The Appellant argued that the caricature was uploaded as a form of a joke without any intention to annoy. The Court decided in favour of the Respondent. In arriving at its decision, the High Court adopted the principle decided in the case of Ong Eng Guan v Public Prosecutor [1956] 1 MLJ 44:-

“The point is not whether he annoyed the complainant,… but whether… he intended to annoy him…”

The  High Court also referred to Public Prosecutor v Rutinin Suhaimin [2013] 2 CLJ 427 where the intention to cause annoyance can be inferred from the fact that an offensive remark pertaining to the HRH Sultan of Perak was posted on the online visitor book of the HRH Sultan of Perak. The High Court held that evidence in respect of intention is always a matter of inference.

“Section 233(1)(b) does not say that the victim of the offence must actually feel annoyed or abused. The provision only says that the offender must have intention to annoy or abuse. Therefore it is sufficient if the communication in question has the tendency to cause annoyance or abuse to any person.”

There are limited cases that have actually applied Sections 211(1) and 233(1) of CMA 1998 above. However, the increasing spread of fake news regarding the COVID-19 pandemic will give the Courts the chance to fully test out and give effect to these provisions.

Due to the limited local cases, we can look at the law in the UK, where they have the Malicious Communications Act 1988 and the Communications Act 2003, which contains similar provisions to Section 233 of the CMA.

Section 127 of the Communications Act 2003 makes it an offence to send a message or other matter that is grossly offensive or of an indecent, obscene or menacing character by means of a public electronic communications network. One distinguishing feature from the CMA 1998 is that the content of the message in question must be “grossly offensive”.

The provision above was applied in the famous “twitter joke” case, Chambers v DPP [2012] EWHC 2157 (QBD).  The appellant publicly posted the following message on Twitter in frustration due to the closure of an airport because of heavy snowfall:

“@ Crazycolours: I was thinking that if it does then I had decided to resort to terrorism”
“@ Crazycolours: That’s the plan! I am sure the pilots will be expecting me to demand a more exotic location than NI.”

The said tweets were visible to approximately 600 of his followers. The duty manager in charge of security for the airport discovered the Tweets and referred it to his manager pursuant to airport procedure.

 The Court held that to succeed in a prosecution under Section 127, there are two elements  which must  be fulfilled:

1. Actus reus: An objective assessment as to whether the nature of the content falls under the characters stipulated in Section 127 (i) (in this case, a menacing character); AND whether an inference can be drawn that it represented a menace in the context and means by which it was sent.

2. Mens Rea: The mental element of the offence is satisfied if the offender is proved to have intended that the message should be of a menacing character (the most serious form of the offence) or alternatively, if he is proved to have been aware of or to have recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it.

On appeal, the Court overturned the conviction on the basis that the tweet did not constitute or include a message of a menacing character. The requisite mens rea was not satisfied as the Appellant intended the message as a joke, even if it was done in bad taste. 

The negative impact of fake news

Most people spread fake news with good or innocent intention believing the same to be true or intending that such news is beneficial. In fact, such fake news tends to spread far wider than actual news in light of the current instantaneous modes of communication. This inevitably can cause serious harm to the public.

For instance, the panic buying that occurred before the MCO was a result of fake news being spread that all shops and markets will be closed due to the COVID-19 outbreak.  This, in fact, posed more harm to the public by exposing the panic buyers to a higher risk of infection.

Measures taken by the relevant authority to debunk fake news

The Malaysian Communications & Multimedia Commission (MCMC) has the primary role to implement policies and regulate online activities.  MCMC closely monitors fake news on social media and sets out a list of viral fake news in relation to COVID-19 on their official website www.kkmm.gov.my every day.

A fact-checking website, Sebenarnya (www.sebenarnya.my) with the slogan ‘Tidak Pasti Jangan Kongsi’, set up by the MCMC, aims to counter fake news by allowing the public to verify their news source before they hit the ‘forward’ button. It is also our duty as citizens to report fake news to the Ministry to enable an investigation to take place.

Members of the public may also join an official Telegram channel for Sebenarnya launched by the MCMC as part of a measure to debunk fake news regarding COVID-19 on Social Media.

The responsibility of combating fake news does not fall solely on the MCMC or law enforcement authority. Therefore, to effectively curb the spreading of fake news, the citizens need to cooperate with law enforcement officers by actively reporting any instances of fake news.