With fake news law, Malaysia is one step closer to '1984'

“It was a bright cold day in April and the clocks were striking thirteen...”

George Orwell starts his classic novel, "1984", with a chilling cadence. "1984" was a dystopia and followed a man named Winston Smith who worked for a totalitarian regime (the Party). Every thought and action was watched over, and the government exercised utter and absolute authority over its subjects.

"1984" was written as a stark reminder to remain vigilant against government power and to protect our freedoms before they turn into ashes.

The Anti-Fake News Bill (AFN) has all the hallmarks that could bring Malaysia into 1984. Granted, Orwell’s "1984" society was a dystopia, an imagination far away from what we are now. But the AFN prepares the early steps for us to reach that place.

'Thoughtcrime'

In the colourless and gloomy world of "1984", there is “thoughtcrime”. You are not allowed to possess or express any thought incompatible with the Party’s.

Through repeated propaganda and falsified information, the Party brainwashes its people. The Party boasts on page 265 of the book that it does not merely destroy its enemies; it changes them.

Winston Smith, who is anti-Party, is betrayed and arrested by the police and tortured under gory and gruesome methods so that he will admit the “crimes” he has committed. While being punished, Winston is still unsure what wrong he has done. And that is when laws and punishments are most unjust.

Whilst the AFN doesn’t punish “thoughtcrime” expressly, it specifically targets crime of this nature.

According to Section 2 of the AFN, “fake news” targets “any news, information, data and reports… wholly or partly false… whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words of ideas”.  And “publication” includes any “digitally, electronically, magnetically or mechanically produced publication”. This covers nearly every modern method of expressing thoughts.

Section 4 of the AFN is the main offence provision. The manner of spreading “fake news” includes knowingly creating, offering, publishing, printing, distributing, circulating or disseminating such news. This covers nearly every manner of expressing thoughts.

At its highest, this violates the basic rule of law according to the standard set by the famous British jurist Lord Bingham. AFN’s provisions are neither clear nor predictable; no one knows how far the law stretches. Nor does it sufficiently recognise our basic freedom of expression under our Federal Constitution (Article 10).

At its lowest, this qualifies as an early stage “thoughtcrime” law.

Excessive punishments

In "1984", the punishments are severe. Anyone who commits a “thoughtcrime” shall be imprisoned, tortured, brainwashed, or vaporised (death). Winston is starved, physically beaten, psychologically tormented, and ultimately subjected to his worst fear - being encircled by feisty rats.

Under the AFN, Section 4 prescribes a severe 10-year imprisonment limit and/or hefty RM500,000 fine for offenders. Anyone who financially supports such offenders faces similar punishments under Section 5; body corporates and abetters could similarly be found liable with same punishments as the offender (Section 13 and Section 10).

There is additionally a RM100,000 fine for failing a general duty of removing “fake news” as soon as you know or have reasonable grounds to believe it contains “fake news”.

A 10-year imprisonment and RM500,000 will substantially deprive the liberty and financially incapacitate any typical Malaysian. Without hesitation, this law disregards the basic criminal law principle of proportionality and fairness. The punishment doesn’t fit the “crime”.

Lies become truth

In Orwell’s "1984", lies become truth. The Party undertook a process of continuous alteration to newspapers, books, periodicals, pamphlets, posters, leaflets, films, soundtracks and everything else. The purpose was to ensure that the Party’s ideological strength is maintained by purging all other conflicting ideologies. There is but one truth - the Party’s.

The result was a phenomenon called “doublethink”, where the people had to accept two contrary types of information at once - actual truth and Party “truth”.

Over time, the people discard their basic analytical processes and become manically obedient to the Party. They also develop the ability to “crimestop” - by cutting off their own ideas as soon as they realise it might be against the Party.

On top of that, the stench-filled world of 1984 has telescreens that dually televise Party propaganda and record everything that goes on.

In our world of AFN, early indication suggests that anything not verified by the government will be classified as “fake news”. Unsurprisingly, the broadness of Section 2 of the AFN allows that.

For example, assuming the AFN is passed, the government could hypothetically classify all negative reports, information, and news that suggest the Election Commission’s redelineation proposals were marred with gerrymandering and malapportionment as “fake news”. All such information outside Malaysia will similarly be criminalised under Section 3.

Since the government cannot charge everyone, you’ll still likely read on the internet that the re-delineation proposals were bad. But at the same time, you will also be forced to accept that they were good, according to government verification.

This is the world of “doublethink”—the epitome of a "1984" society. At the start, this is manageable. But when more of these situations occur to you, you slowly lose your ability to think independently.

You are no longer allowed to compare the government’s truth (“There is no gerrymandering”) to the other truth (“There is gerrymandering”), because the latter is “fake news” that can be severely punished. And so long as you are not allowed such standards of comparison, you will “never even become aware that (you) are oppressed” (page 216).

Make no mistake, Section 6 of the AFN also functions like a surveillance system. It is a general duty of any person to immediately remove publications containing fake news. Which means every time you want to post something, you must ask yourself the question that has no answers: Would the government approve of this?

The consequence of something being regarded as “fake news” is that you will be faced with a thumping RM100,000 fine. So we “crimestop”. What better surveillance of your thoughts than such a provision?

Justice is like air

We are not the totalitarian society Winston lived in. But our democracy is only as good as our ability to protect it. And in a world where the government gets to classify what is bad for itself as “fake news”, we lose our ability to question the potential wrongdoings that inflict every imperfect government.

Orwell reminds us at page 279 that “Power is in tearing human minds to pieces and putting them together again in new shapes of your own choosing”. When the government has power over our minds, democracy comes to an end.

You may say I am exaggerating or overplaying AFN’s horror - you may be right.

But we must remember that even a rebellious Winston in "1984" surrendered and succumbed to the Party ideology in the end. Because when the laws are oppressive, searching for little pockets of freedom is like swimming against the current - you will struggle badly.

Eventually you will just turn around and “go with the current instead of opposing it” (page 290). You will also "yell with the crowd", because "it’s the only way to be safe" (page 128). Because, in Maya Angelou’s words: "Justice is like the air - either we all have it, or none of us has it".

I hope the day never comes that we will have to write: “It was a bright cold day in April and the clocks were striking thirteen...”

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JAMES CHAI works at a law firm. His voyage in life is made less lonely with a family of deep love, friends of good humour and teachers of selfless giving. This affirms his conviction in the common goodness of people: the better angels of our nature. He tweets at @JamesJSChai. -Mkini