30 March 2021
On 12 March 2021, Malaysia’s Emergency (Essential Powers) (No. 2) Ordinance 2021 (“Ordinance”) came into effect. The Ordinance prescribes provisions that aim to curb fake news relating to Covid-19 or the Malaysian Government’s proclamation of emergency.
Some of the key provisions of the Ordinance are as follows:
- The term “fake news” is defined under section 2 as “any news, information, data and reports, which is or are wholly or partly false relating to Covid-19 or the proclamation of emergency, whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas”;
- Section 3(1) prescribes the extra-territorial application of the Ordinance, which means that a person who commits an offence under this Ordinance outside Malaysia may be dealt with in respect of such offence as if it was committed within Malaysia. However, the offence committed must concern Malaysia or the person affected by the commission of the offence must be a Malaysian citizen;
- Under section 4(1), a person who, among other things, creates, offers, publishes or disseminates any fake news commits an offence and may, on conviction, be liable to a fine not exceeding RM100,000 and/or imprisonment for a term not exceeding three years;
- Section 5 penalises any person who directly or indirectly provides financial assistance for the purposes of committing or facilitating the commission of an offence under section 4 of the Ordinance. Such persons are liable of an offence and may face a fine not exceeding RM500,000 and/or imprisonment for a term not exceeding six years;
- Section 7(1) provides that any person affected by a publication containing fake news may make an ex parte application to the Sessions Court for an order to remove such publication;
- Under section 11, oral or written statements made in the course of an investigation of an offence under this Ordinance by persons who have died or are missing would be admissible as evidence;
- Section 19(1) provides that access to computerised data is to be given to police officers or authorised officers (“Officers”) conducting a search. Any person who fails to comply with this provision may face a fine not exceeding RM100,000 and/or imprisonment for a term not exceeding one year;
- Sections 20(1) and 21(1) respectively empower Officers to require a person in control of a communications system to preserve or disclose traffic data if the Officers are satisfied that such traffic data is reasonably required for the purposes of investigation of an offence under this Ordinance.