As we witness democratic backsliding across Southeast Asia, part of the blame must certainly be assigned to a multitude of global security paradigms. These are deployed from the Global North and are readily adopted elsewhere, for example in Malaysia, Singapore, and Thailand, to justify additional free speech restrictions. Threat narratives, often concerned with risks arising from the internet, are shaping a global security discourse that unites democracies and authoritarian governments in waging simultaneous wars on fake news, terrorist financing, and foreign interference. The tools intended to fight these wars differ, of course: liberal democracies may opt for self-regulation, some administrative intervention, and proportionate criminalization. Many of Southeast Asia’s governments, however, have expanded criminal laws by default.
The ‘Fake News’ Threat
Before Malaysia’s Anti-Fake News Act (AFNA) was enacted in 2018, federal and state ministers defended the move with references to Germany and France, despite the fact that the spreading of false information is not generally criminalized in these countries. Though AFNA has since been repealed, the Act was revived in March this year in an aggravated form as the Emergency (Essential Powers) (No. 2) Ordinance 2021. According to this ordinance, the mere provision of financial assistance to facilitate the spreading of any COVID-19-related fake news can result in up to six years imprisonment. Again, government-friendly commentary mistakenly cited German laws as a source of inspiration.
The drafting of Singapore’s Protection from Online Falsehoods and Manipulation Act (POFMA) was accompanied by similar assertions, including references to Germany’s Network Enforcement Act (NetzDG) of 2017. The respective parliamentary select committee and even the prime minister claimed that Singapore was joining democratic countries in a global and therefore, fully legitimate war on fake news. POFMA carries punishments of up to five years imprisonment for spreading false information. There is no equivalent criminal law in Germany, of course. In addition, Malaysia, Singapore and Thailand have also established government fact-checking websites to govern the fake news threat.
We are now seeing discussions about possible anti-fake news laws in Hong Kong and South Korea. While the government of China’s special administrative region may have little inhibitions about employing criminal sanctions in this regard, South Korea’s ruling Democratic Party introduced changes to the Press Arbitration Act that would have substantially increased civil liability for publishing false or deceptive information. The bill has apparently been shelved for the time being, perhaps also due to an intervention by the United Nations’ special rapporteur for freedom of opinion and expression, Irene Khan.
The War on Terror is Not Over
The global war on fake news could almost make us forget its bigger sister, the U.S.-led global war on terror, which celebrates its twentieth anniversary this year. The fight against terrorist financing and money laundering remains a top priority on the agenda of countless governments. The Financial Action Task Force (FATF) and its regional satellites make factually binding “recommendations” that demand ever more reporting and monitoring, effective investigations, and tougher punishments.
In Thailand, these demands led the government to propose a sweeping NGO law that is supposed to govern non-profit organizations. Of course, the FATF emphasizes that all measures should be “focused and proportionate.” Nonetheless, the Thai government referred to its alleged international obligations to suppress terrorist financing and money laundering when devising a legislative plan to create onerous reporting and monitoring duties for NGOs of all types, including the broad obligation to disclose information supplied to foreign organizations. This time, four U.N. special rapporteurs saw the need to jointly remind the Thai government of its obligations under international human rights law.
Foreign Interference
On October 4, the Parliament of Singapore passed the Foreign Interference (Countermeasures) Act (FICA). It contains a multitude of criminal provisions covering a wide variety of what the Act designates as clandestine foreign interference. For instance, according to the draft bill, a person can be punished with imprisonment of up to 14 years for electronic communications activities on behalf of another person acting on behalf of a foreign principal and concealing this fact, if conducted with the intention of influencing another person to conduct activities that are “likely to be directed towards a political end in Singapore.”
Accompanying FICA’s first reading, the Ministry of Home Affairs emphasized that “our laws need to evolve, just as other countries have introduced new laws to tackle foreign interference.” Most prominently perhaps, Australia had recently passed the Foreign Influence Transparency Scheme Act 2019 as an apparent response to Chinese influence. The Criminal Code was amended with respect to offenses of espionage and foreign interference. The United States Department of Homeland Security set up a task force to counter foreign influence in 2018. Canada led an initiative at the 2018 G7 Summit in Charlevoix to establish a rapid response mechanism to counter evolving threats to democracies. And last year, the European Parliament set up a special committee on foreign interference.
Shaping the Discourse, Rationalizing the Narratives
All of this illustrates how universal security paradigms are localized in parts of Southeast Asia. The global wars on fake news, terrorist financing, and foreign interference have all led to overly broad expansions of criminal law with disproportionately high punishments. In this environment, isolated acts of enforcement are sufficient to cause widespread self-censorship, reinforcing authoritarian rule.
In liberal democracies, governmental power is usually subject to independent judicial control based on charters of fundamental rights and a strict assessment of proportionality. In authoritarian regimes, however, we find a widespread deference of courts to other governmental branches. Constitutional rights do not provide adequate protection.
So, what needs to be done? Western governments will, of course, not refrain from addressing legitimate security concerns just because their ideas could be appropriated elsewhere in seriously aggravated forms. Therefore, they should focus on rationalizing their communication and regain control over global security discourses. To this end, four aspects appear particularly important:
First, threat levels must be described adequately and realistically. All forms of alarmism should be prevented. For instance, it is not helpful if EU directives seriously speak of money laundering and financing of terrorism as threats to the entire internal market and the internal security of the Union. This is simply inadequate and unrealistic.
Second, democratic governments must emphasize clearly that their countermeasures against foreign interference are primarily directed against meddling by authoritarian regimes. Thus, the protection against foreign interference is essentially the protection of democracy, rather than a matter of national security.
Third, government communications must proactively highlight the risks of abuse and the necessity of careful application, as well as strict interpretation. Democratic governments must demonstrate their awareness of having to deal with highly delicate matters that require proper judicial oversight based on individual rights and proportionality.
And fourth, democratic governments must unequivocally disassociate themselves from abusive measures adopted elsewhere and condemn disproportionate restrictions of individual rights, particularly by means of criminal law. It should be made clear that shared global security interests do not absolve nations from their international human rights obligations.