Regulating online fraud: Malaysia's OSB vs China's approach

The Star

4 days ago

INITIATED in the 2010s, China's Digital Silk Road (DSR) aims to enhance digital connectivity across nations through infrastructure, trade, finance, people-to-people exchanges and policy coordination.
It presents new commercial opportunities for Malaysia by fostering collaboration between Chinese and Malaysian businesses, strengthening Malaysia's digital economy ecosystem.
The convergence of China's DSR, the Covid-19 pandemic, and the rapid rise in artificial intelligence (AI) have significantly accelerated the adoption of digital technologies in business processes and operations within Malaysia.
However, while digitalisation offers numerous benefits, it has unfortunately also led to a significant surge in online criminal activity.
A recent report by The Star revealed that nearly RM600mil was lost to online fraud from January to March, according to the Bukit Aman Commercial Crime Investigation Department.
The report highlighted that criminals are exploiting technological advancements and modern lifestyles, using fake digital identities, fraudulent websites, chatbots and deepfakes to deceive victims.
Recognising the escalating threat posed by these sophisticated methods, regulatory interventions focused on online content have become a prevailing trend.
Malaysia, in line with this trend, passed the Online Safety Bill (OSB) 2024 in December. It is awaiting official gazettement, and its effective date will be determined by Communications Minister Datuk Fahmi Fadzil.
The new law aims to enhance online safety in Malaysia by regulating harmful content and establishing duties and obligations for application service providers (those who provide network services such as Internet access), content application service providers (those who provide content such as broadcasting and video streaming), and network service providers (those providing cellular mobile services and bandwidth services) operating within and outside Malaysia.
According to Minister in the Prime Minister's Department (Law and Institutional Reforms) Datuk Seri Azalina Othman Said, it applies to licensed application and content service providers such as Instagram, WhatsApp, TikTok and YouTube.
The Bill regulates two categories of content: 'harmful content' and 'priority harmful content'. Its First Schedule defines the scope of harmful content, which includes content on financial fraud, excluding content that promotes awareness or education related to financial fraud.
The content on financial fraud listed in the First Schedule is also classified as 'priority harmful content' in the Second Schedule.
Key duties imposed on service providers include the obligation to implement measures to detect and mitigate harmful content (Section 13), issue user guidelines (Section 14), establish mechanisms for handling user reports of potentially harmful content (Sections 16 and 17), and prepare an Online Safety Plan (Section 20).
For priority harmful content, such as financial fraud, service providers must take steps to prevent user access (Section 19).
Despite Fahmi's assurance that the government's intention in introducing the OSB is to serve as a measure to combat crime, such as financial fraud, and not to restrict freedom of expression, critics remain concerned about its potential to restrict freedom of expression and be used as a censorship tool by the government.
These are valid concerns, particularly considering the vague definition of harmful content in the OSB and the vast powers conferred on a commission reporting to the Communications Ministry.
This commentary limits its discussion to the Bill's role concerning content on financial fraud. It is undeniable that unregulated content involving financial fraud, such as online scams, can damage business reputations and cause financial losses.
Deputy Communications Minister Teo Nie Ching reported that RM1.224bil was lost to online crimes and scams in Malaysia within the first 10 months of last year, with many victims falling prey to sponsored advertisements on social media platforms.
Indeed, a duty should be imposed on service providers to prevent these platforms from profiting from sponsored advertisements involving financial scams, for which they receive payment to promote products or services.
Nevertheless, the provisions in the OSB are still lacking when viewed from the perspective of curbing online fraud.
In China, the government passed the Anti-Telecom and Online Fraud Law ('ATOF Law') in September 2022. This law is more specific, aiming to prevent, deter and punish telecommunications and online fraud, strengthen efforts against such fraud, and protect the rights and interests of citizens and organisations.
It imposes responsibilities on key businesses in the telecommunications, financial, and Internet sectors to prevent fraud risks.
Among these requirements, the law requires service providers to verify users' identities before providing a range of services, such as web hosting, content and software distribution, livestreaming and advertising (Article 21).
The law also imposes a duty of reasonable care on service providers to monitor, identify, and address the use of their services to commit fraud (Article 25).
The ATOF Law provides a model regulation for targeted fraud prevention. While Malaysia and China operate within different legal and cultural frameworks, there are valuable lessons to be learned from China's experience in addressing online fraud.
China's preventive measures have contributed to a more secure digital environment for businesses and consumers, minimising the impact of online fraud.
While the Malaysian government's efforts to ensure a secure online environment and build trust in the digital ecosystem are laudable, more targeted provisions focused on the specific mechanics of online fraud would be more efficient, like China's ATOF Law, instead of a broad content regulation approach.
China's ATOF Law, which emphasises user verification and platform monitoring for fraudulent activities, would allow for a more focused approach to content regulation.
It is imperative that the Malaysian government review the adequacy of the OSB in achieving its intended purpose of curbing online crime. To enhance its efficacy, the government could consider incorporating more granular provisions that mandate specific actions from service providers and establish clear and enforceable guidelines and penalties.
A well-regulated online environment, one that builds trust and security, can attract foreign investment and facilitate DSR-related collaborations, shaping the long-term trajectory of Malaysia's digital economy.
Lai Chooi Ling is a lecturer at Tunku Abdul Rahman University of Management and Technology (TAR UMT). The views expressed here are entirely the writer's own.
The SEARCH Scholar Series is a social responsibility programme jointly organised by the South-East Asia Research Centre for Humanities (SEARCH) and TAR UMT.