On 12 March 2021, the Emergency (Essential Powers) (No. 2) Ordinance 2021 (“Ordinance”) came into force. Many have said that the Ordinance is a revival of the repealed Anti-Fake News Act 2018 (“AFNA”). Is that truly the case? In this article, we set out the 6 things that you need to know about the Ordinance.
1. Limited application area – The Ordinance has a limited area of application as it only covers news, information, data and reports, which is or are wholly or partly false relating to COVID-19 or the proclamation of emergency. This is unlike the AFNA which applies to any type of news, information, data and reports, which is or are wholly or partly false.
2. Lower intention threshold – Section 4 of the Ordinance criminalizes the creation, offer, publication, printing, distribution, circulation or dissemination of any fake news or publication containing fake news with intent to cause, or which is likely to cause fear or alarm to the public, or to any section of the public. This intention threshold is similar to that of Section 505(b) of the Penal Code, which criminalizes the publication or circulation of any statement, rumour or report with intent to cause, or which is likely to cause fear or alarm to the public, or to any section of the public. The intention threshold of the AFNA is arguably higher, as it only criminalizes malicious publication of fake news.
3. Police officer or authorized officer under the Communications and Multimedia Act 1998 (“AO”) can compel removal of fake news without Court order – Section 6 of the Ordinance imposes an obligation on any person having in his possession, custody or control of any publication containing fake news to remove such publication within 24 hours from the time being directed by a police officer or AO. This gives more power to the authorities to order removal of fake news even in the absence of a Court order. This is in stark contrast with the AFNA, where its Section 9 provides that a police officer or AO can take necessary measures to remove publication containing fake news only if a person on which a Court order was made to remove such publication, fails to do so.
4. Broad admissibility of evidence – Part IV of the Ordinance overrides the Evidence Act 1950 (“EA”) in case of inconsistencies between both. For instance, Section 12 of the Ordinance provides that a statement by an accused whether oral or in writing to any person at any time is admissible. This runs afoul with Section 24 of the EA, which provides that a statement by an accused is irrelevant if, for instance, it appears that it has been caused by inducement or threat. Provisions in Part IV of the Ordinance are not present in the AFNA.
5. Police officer or AO may arrest without warrant – Sections 16 and 17 of the Ordinance provide that a police officer or an AO may arrest any person whom he reasonably believes has committed or is attempting to commit and offence under the Ordinance without warrant. This makes any offence under the Ordinance equivalent to an offence under the First Schedule of the Criminal Procedure Code (“CPC“). This is to be contrasted against the offence of publishing and circulating any rumour (which is arguably equivalent to publishing and circulating fake news) under Section 505(b) of the Penal Code, for which a warrant of arrest is required.
6. Police officer or AO can access your private data – Section 19 of the Ordinance provides that when conducting a search, the police officer or AO shall be given access to computerized data. This includes providing the police officer or AO with the necessary password, encryption code, decryption code, software or hardware and any other means required to enable comprehension of computerized data. This provision is absent in the AFNA. A comparison of Section 19 of the Ordinance with the CPC shows that there are more safeguards provided under the CPC, as its Section 116B provides that only a police officer with at least the rank of an Inspector conducting a search under the CPC shall be given such access.
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