By: Sonny Zulhuda
Everyone now speaks about this COVID-19, the latest Corona virus epidemic which started in China recently and had now affected over 45,000 people worldwide, and killed more than 1,200 people. People talk about it because it is everyone’s concern. It is about life and death (beyond just economy!).
The problem now is, we have too much information to the extent that it is so hard to identify the truth behind each piece of information. Some of those info may have led to increasing fear and panic. I believe this is not what we want: mixing facts with fiction, then distorting our priorities.
It is interesting to note recently (the past few days) that some penal sanctions were upheld by courts in Malaysia against those who are found to spread fake news or information about COVID-19. Here are some excerpts from one media report (The Star Online, 13 Feb 2020):
“Retiree fined RM5,000 for spreading fake news”
SANDAKAN: A former employee of the Sabah State Railway Department was fined RM5,000 in default 10 months’ jail by the Magistrate’s Court here for spreading fake news on Covid-19 (novel coronavirus), Bernama reported.
Magistrate Suhailla Selag meted out the fine on Aliuudin Amit, 67, who is retired, after he pleaded guilty to the offence yesterday. He was charged with circulating a statement aimed at causing public mischief through WhatsApp by spreading a rumour about a prisoner in Sandakan Prison who died from Covid-19. The offence was committed at Lot 70, Jalan Selunsung, Taman Sempelang, Kota Kinabalu, at 9.34pm on Jan 23. The statement was read by an officer of the Sandakan Prison at 10.46am the following day.
The charge was under Section 505(b) of the Penal Code, which provides for a jail term of up to two years, a fine or both, upon conviction. In mitigation, Aliuudin, who was unrepresented, promised not to repeat the mistake. Aliuudin paid the fine.
Now, let us see. The report said it was “fake” news. What law was used to bring the charge? No, not the “Anti-fake news Act, because it is now repealed (Almarhum) already. Instead, the charge was brought under Malaysia’s main criminal code, i.e. Penal Code section 505.
Section 505 of Penal Code is entitled: Statements conducing to public mischief. It has few sub-section, but let me zoom in to the sub-section (b) which has been used by the Court. Here are the excerpts:
505. Whoever makes, publishes or circulates any statement, rumour or report — (b) with intent to cause, or which is 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.
So, here are some notes about the legal provision:
1. Actus Reus and Mens Rea
Every crime has two elements to subsist: the actual act and the mental element (intention, knowledge, etc.). This is reflected in the legal maxim Actus non facit reum nisi mens sit rea, which means: conviction of a crime requires proof of a criminal act and intent. So, in understanding a crime, we can look at each element of Actus Reus and Mens Rea.
2. Is it about Fake News?
The object of this offence is not about spreading fake news. In fact, it is about any news (any statement, rumour or report). So, it seems that it does not matter whether the news you spread or shared is fake or true. This law will apply! But, please wait until you check all the requirements before you start deleting all news on your FB walls 😉
3. What to prove? Actus Reus
What is the actus reus of this offence? This provision is concerned about these acts: “makes, publishes or circulates” (note also the italicised word “or”). This can be elaborated the following ways;
- According to this law, you may do wrong if you (either by yourself or with others) make the statement.
- You may also be found guilty if you did not make it, but you only publish it (this will apply to the publishers).
- And on top of that, you may also be penalised under this law even if all what you did was “only” circulating the statement. The last one is the most common situation in this digital media era: sharing the news on your FB wall, forwarding the news on your WhatsApp or Twitter, sending it by e-mail, or re-publishing it on your blog.
Any of this act may on its own amount to an offence under this law! (that is the effect of the word “or” as each act will be read disjunctively or independently from one another).
4. Does it Matter how the News was Spred or Circulated?
Unfortunately, it does not matter. Whether it is oral or written; online or offline; print or electronically broadcast, this provision can be triggered. And when it comes to online or electronically circulated, the chance is that other laws like CMA 1998 may also be triggered.
5. Mens Rea: The intention that matters
I would now note another critical element in this particular sub-section relating to the intention or Mens Rea. The offence under this law will only apply if that the above acts in point no. 2 (“makes, publishes or circulates”) are done “with intent to cause, or which is likely to cause, fear or alarm to the public…”.
So the crime only stands if it is proven that the person intends to cause fear or alarm to the public. However.. it is not all. Even if the intention is not proven as such, the offence would stand if the acts mentioned earlier are “likely to cause fear or alarm to the public…” despite the intention. This means knowledge (not the intention) will be sufficient to establish the offence. In other words, the person may be guilty if it is objectively known to cause such an effect.
6. The effect protected against: Public Fear or Alarm
Section 505(b) of Penal Code highlights that the offence must be the one that is intended, or known, to cause fear or alarm to the public, or to any section of the public, whereby (as a consequence) any person may be induced (due to that publication or statement, etc) to commit an offence against the State or against the public tranquillity.
The question in our case here is, what kind of fear or alarm may be caused? Obviously, in today’s course, it is about the fear or alarm relating to the infectious spread of the COVID-19. Please note hereh that it does not matter whether or not such fear or alarm has taken place.
At the end of this provision, it completes the equation that such fear or alarm so caused may have the effect of inducing someone to commit an offence. No specific offence is referred to here, which means it can be any offence prescribed by law in so long it offends State or public tranqulity. Again, there is no need to prove that such offence takes place. It suffices that such intention, possibility or likeliness is there.
7. The punishment
The law provides that, once the offence is established, the person shall be punished with imprisonment which may extend to two years or with fine or with both. So there are three scenarios: 1. Imprisonment of up to two years; 2. Fine (of any amount court may think fit); or 3. The combination of both jail term and fine.
As we see above, this section 505(b) of the Penal Code is not about spreading fake news. The fact that such news being circulated was fake in itself is not sufficient to establish an offence. Instead, it is about spreading any news, made with the intention or knowledge to cause public fear or alarm that may have the effect of inducing an offence against State or public tranquility.
In the wake of the COVID-19 epidemic, we see the court is sending a strong message for the purpose of keeping public tranquility. Whether or not the information is fake, consider some self-control on whether it is OK to pass it to others.