ICFP fellow Gabrielle Lim explores the use of “fake news” as justification for censorship-enabling legislation and the strategies of resistance used by civil society to combat such legislation.
It is now cliché for politicians, academics, journalists, and government officials to slip into the language of "security" when describing the threat posed by disinformation. The line goes: Social media is a threat to democracy, it is being "weaponized," and so it may eventually undermine faith in the rule of law, the democratic process, and public order. Combined with its extreme cousins – hate speech, online harassment, and hyper-polarized content – disinformation has inspired a wide range of actors from civil society to transgovernmental organizations to nation states to propose and enact legislation and policies aimed at mitigating the spread of disinformation.
However, as concerns over disinformation and “fake news” grow, so do fears of censorship, governmental overreach, and other forms of information control. Malaysia, one of the first states to explicitly pass a law targeting “fake news,” exemplified these tensions in 2018 when the ruling government passed the Anti-Fake News Act (AFNA)—a bellwether of what may come in the fight against false and misleading content. Working with host organization Data & Society, Information Controls Fellowship Program (ICFP) fellow Gabrielle Lim employed media analysis and in-field interviews with civil society to better understand how global concerns can be transformed into moments of legislative opportunism and how individuals, opposition parties, and independent media can counter such legislative overreach. She found that the most pressing narratives used by the Malaysian government mixed security language and global concerns over disinformation to justify the AFNA, while counter strategies focused on targeting the government’s motivations, rapid civil society coordination, information sharing between civil society and opposition candidates, and constant and open criticism of the AFNA.
While this study focuses on Malaysia, similar legislation targeting “fake news” has been proposed or enacted in several other countries from Nigeria to Singapore to Russia. To be sure, divisive content can be harmful, but as "fake news" becomes securitized (i.e. framed as a security threat that warrants exceptional measures), authoritarian and illiberal governments may capitalize on the global suspicion of social media to enact legislation that could be far more harmful than "fake news" itself.
The 2018 Anti-Fake News Act was an extreme information control tool for the Malaysian state. It was a broad bill that not only criminalized “creating, offering, publishing, etc., fake news or
publication containing fake news” but “providing financial assistance for purposes of
committing or facilitating” as well. Its definition of “fake news” was vague, while conviction under the Anti-Fake News Act included penalties of up to 500,000 ringgit (approximately USD 122,774), imprisonment of up to six years, content removal, court-ordered apology, and additional fines of up to 3000 ringgit a day for continued offenses. When the bill was first tabled, Eric Paulsen, co-founder of Malaysian human rights group Lawyers for Liberty, told the BBC: “The bill is 100% intended to muffle dissent...the punishment is extremely high and what amounts to fake news has been loosely defined.” In addition, Malaysia already has a long history of censorship from blocking content about political and economic corruption, censoring LGBTQ-related content such as AIDS/HIV information, and arresting individuals for criticizing Malaysian royalty online.
Ultimately, by labeling content critical of the ruling coalition as “fake news,” and then framing “fake news” as a security threat, the Malaysian government created a tool to sow distrust in both the opposition coalition and social media writ large, and to selectively censor online content. “Fake news” thus had dual uses: on one hand, it discredited critical voices, and on the other hand, it justified censorship-enabling legislation.
Employing content and discourse analysis over five mainstream state-influenced news outlets, the study found in the months preceding Malaysia’s 14th General Election and the passing of the Anti-Fake News Act an increasing number of articles published containing the term “fake news.” The key inter-related narratives were:
- that “fake news” was on the rise,
- that the upcoming election would be inundated with “fake news,” and
- that this “fake news” was a threat.
While the first two are common refrains in the lead-up to most elections, the third was used in tandem to justify the novel legislation, employed liberal security language and cited the global rise of “fake news” and its perceived threats as legitimate reasons for the Anti-Fake News Act.
During the same period, however, civil society and opposition politicians engaged in counter-securitization: Rather than refute the ruling coalition’s claims about “fake news,” the opposition made their own securitizing moves, claiming that the ruling group’s actions were the real threat to national security. The strategies used to counter-securitize “fake news” included:
- constant and open criticism of the Anti-Fake News Act,
- rapid coordination between civil society on public messaging,
- information sharing with between civil society and opposition politicians, and
- the use of strategic attack narratives discrediting the Anti-Fake News Act.
It’s important to note, however, that the AFNA, which was eventually repealed following an upset victory by opposition coalition Pakatan Harapan, relied on three other crucial factors: a democratic process (even if frequently abused and violated), an existing and active civil society, and relatively open and accessible internet access. In the case of Malaysia, an active and engaged civil society played a key role in the repeal of the AFNA and its censorship-enabling potential — highlighting the importance and resilience of a free press, activists, and other human rights defenders in the country. While the participation of such actors in the process was not fully robust or respected, the results of a democratic process played a necessary part in the repeal of the repressive piece of legislation. Without these conditions, the counter-securitization strategies employed may not have been as successful. As other states grapple with similar challenges, the case of Malaysia’s response to “fake news” — inclusive of both state and non-state actors — represents a useful point of reference for both recognizing popular state-backed securitization narratives as they pertain to “fake news,” as well as understanding how opponents to such repressive proposals can successfully manage to counteract them.
The fight over “fake news” continues
Although most participants interviewed for this study did not think that “fake news” was a national security threat, they have been impacted by disinformation, “cybertrooper” activity, and online harassment. Combined with still existing legislation such as the Sedition Act and the Communications and Multimedia Act, political online expression continues to be at risk of censorship (self-imposed or otherwise), media manipulation, and “flooding” tactics, whereby critical content is drowned out by propaganda, zealous individuals, or centrally-controlled accounts (i.e. bots).
Most recently, the names of those who participated in protests or criticized Malaysian royalty on social media have been called in for questioning or arrested. The challenge facing Malaysia and other states now is how to respond to the legitimate threats of disinformation, harassment, and censorship without conforming to a single, global narrative of “national security.” Safety and security with regards to “fake news” and disinformation need not remain constrained to the remit of national security or law enforcement. Rather, novel and more innovative bottom-up approaches should be explored while simultaneously ensuring access to information and civil rights such as freedom of expression, data protection, and online privacy.
About the program: OTF’s Information Controls Fellowship Program (ICFP) supports examination into how governments in countries, regions, or areas of OTF’s core focus are restricting the free flow of information, impeding access to the open Internet, and implementing censorship mechanisms, thereby threatening the ability of global citizens to exercise basic human rights and democracy. The program supports fellows to work within host organizations that are established centers of expertise by offering competitively paid fellowships for three, six, nine, or twelve months in duration.