Synthetic Media: Why Malaysia Needs a Targeted Legal Response

 

The rise of synthetic media, defined as AI-generated video, audio, images, and text designed to appear authentic, has introduced a new class of digital threats that are immediate, invasive, and often devastating. Deepfakes, a particularly dangerous subset, use advanced algorithms to fabricate hyper-realistic content with the intent to deceive.

Malaysians have already encountered cloned voices used in scam calls, fabricated videos of public figures promoting fraudulent schemes, and AI-generated pornography used for blackmail.

These incidents undermine personal safety, social and institutional trust, and democratic discourse. The technology is also becoming dangerously accessible.

A recent case involving a student who created obscene synthetic images of a female peer illustrates how quickly young users can move from experimentation to exploitation. As AI tools become more widespread, the risk of casual misuse escalating into serious harm grows exponentially.

The Need for a Dedicated Legal Response Mechanism

Given the urgency and severity of these harms, regulators must adopt a comprehensive and proactive response. What is urgently needed is not just new laws, but a dedicated legal response mechanism within law enforcement (Royal Malaysian Police) or the Malaysian Communications and Multimedia Commission (MCMC). This specialised unit should operate on a 24-hour basis to assist victims, investigate synthetic media crimes, and coordinate rapid takedowns.

Such a unit must be equipped with technical expertise, legal authority, and public accessibility. Victims of deepfake abuse often face delays and confusion when reporting incidents through conventional channels. The longer harmful content remains online, the greater the harm it causes to the individual and the public. A rapid-response division would ensure timely intervention, prevent further dissemination, and restore public confidence in digital safety. In parallel, the response strategy must include public education and media literacy initiatives, beginning at the primary school level.

Laws Directly Focused on Harm

There is also a need to establish laws that directly address these new threats without inadvertently curbing the potential embedded in the technology. India’s proposed Draft Rules offer a useful model by defining synthetic media broadly, but distinguishing malicious deepfakes by their intent to mislead or defraud. This distinction is critical. A blanket regulation of all AI-generated content risks stifling innovation in education, journalism, medicine and the arts. Targeted legislation, by contrast, must focus squarely on demonstrable harm and criminal intent.

The Online Safety Act 2025: An Opportunity for Correction

The Online Safety Act 2025 (the Act), set to take effect in January 2026, represents Malaysia’s most comprehensive attempt to regulate online harm. The Act’s main shortcoming is that it primarily shifts the responsibility of managing harm to service providers without implementing an effective, user-centric safety mechanism.

While the Act’s wide definition of "harmful content" is intended to cover deepfakes, it does not explicitly define or criminalise their malicious creation. The creation of these specific media types is not made an offence under the act itself. Malaysia must seize this legislative opportunity to make three key corrections:

1. Criminalise Malicious Creation at the Source - Malaysia should follow the lead of countries like South Korea, which criminalise the creation and possession of deepfake non-consensual intimate imagery (NCII) from the moment of fabrication. This protects individuals’ digital likeness and consent, addressing gaps in existing laws such as Penal Code Section 292, which focuses narrowly on obscene material.

2. Establish a Dedicated Response Unit  - Effective legislation must be supported by a specialised unit within the police or MCMC, tasked with providing 24-hour assistance to victims of synthetic media abuse. The current provisions of section 16 and Part IV of the Act are document-heavy and procedurally complex, making them more suitable for institutional complainants and not user-friendly enough to encourage individual reporting of harmful content.

3. Guarantee Free Expression and Mandate Transparency - The Act must include an explicit, strong non-censorship clause, as the current Section 13(3) is vague in its prescription to protect free expression by users.

In parallel, platforms should be required to implement transparency measures: mandatory user declarations and algorithmic labelling of synthetic content. If AI-generated media is clearly marked, say, with a non-removable, standardised digital watermark, the public will be able to assess the authenticity of the media. This shifts responsibility to content creators and platforms, reducing the risk of unnecessary government intervention.

Conclusion: Balancing Safety and Liberty

The threat posed by deepfakes undermines trust and corrodes the foundations of democratic discourse by making all media suspect. Deepfakes pose a significant and amplified threat to vulnerable individuals and communities due to factors such as lower digital literacy, potential for severe psychological harm, and the deliberate exploitation of trust.

Malaysia’s legal evolution must reflect a dual commitment: to protect citizens from digital harm and to preserve the constitutional right to free expression. Effective regulation must be precise, transparent, and supported by the institutional capacity of regulators.

By criminalising malicious creation, establishing a dedicated response unit, mandating clear labelling, and reaffirming the right to dissent, Malaysia can strike the right balance by ensuring public safety without sacrificing liberty.

Just as importantly, a legal framework that clearly defines what is prohibited will also create a safe and enabling environment for the legitimate development of synthetic media technologies, in education, accessibility, journalism, and the creative arts.

Clarity in law not only deters abuse but empowers innovation.

 

| The dream of the bench

 By David Dass

For many lawyers, becoming a judge is the pinnacle of a professional life - the culmination of years of study, advocacy, and sacrifice. It is the ultimate realisation of a dream.

Malaysia is a country governed by the rule of law. We have a written Federal Constitution, which stands as the supreme law of the land. As a parliamentary democracy, laws are made by Parliament and the state assemblies.

Our legal system draws from multiple sources - the Common Law of England, the personal laws of Muslims, native laws and customs of the Orang Asli and the indigenous peoples of Sabah and Sarawak, as well as the customs and usage of our diverse communities.

At the heart of this framework stand independent judges, whose task is to interpret and uphold the law.

They are the custodians of justice - the chosen ones on which the entire system of law and governance rests. Here we speak of the judges of the civil and criminal courts, and not of those serving in the syariah judiciary, which administers Muslim personal law.

The call to serve

The day a lawyer receives the call to the bench is unforgettable. It is a moment of heart-stopping excitement - one that marks a turning point in a life’s journey.

The news is shared first with family, then with close friends and colleagues. That joy is often mingled with deep anxiety.

Leaving private practice is never easy. A senior partner often anchors the firm they helped build; their departure may unsettle its stability.

Yet, the call to serve - long-awaited and deeply desired - cannot be refused. It is a call to duty, to something higher than self.

Of course, there are many judges who come from the judicial and legal services of the government. Their experiences may be a little different, but all else will be similar.

The burden of responsibility

With exhilaration comes apprehension. Can I sit through long hearings with patience? Can I send a man to prison - or pronounce the death sentence? Can I endure the long hours, the isolation, the endless reading, and the burden of deciding between competing truths and conflicting arguments?

Judges administer both the criminal law and the vast panoply of civil and commercial law. A daunting prospect for even the most able of lawyers.

The stories of great judges inspire awe and unease in equal measure. One Malaysian judge was said to have written over 800 judgments in his career - an almost superhuman feat.

The judge-to-be recalls the old cautions: a judge who speaks too much is like an “ill-tuned cymbal”, and a judge who “descends into the arena of conflict risks having their vision blurred by the ascending dust.”

Above all, in the words of Lord Alfred Denning, “Justice must not only be done but must be seen to be done.”

The perception of fairness is vital to sustaining judicial credibility and authority. There can be no conflict. Judges are independent. They stand between the powerful - the power of the state - and the individual citizen.

Lord Denning once said: “To every subject of this land, however powerful, I quote the words of Thomas Fuller, three hundred years ago: Be ye ever so high, the law is above you.”

And as Tun Salleh Abas, Malaysia’s Lord President until the 1988 judicial crisis, reminded us: “The judges are the protectors of the Constitution and the guardians of the people’s rights. Without their courage and integrity, the rule of law would be but an empty slogan.”

The trappings of office

The ceremony of elevation is solemn. The new judge dons the robe, shirt, and bib - the apparel of their office. Their family and friends gather proudly in the courtroom as the Chief Justice presides.

On that day, though several may be elevated, each feels a unique surge of pride and awe. He takes the oath of office and swears to uphold the Constitution. The transformation is complete.

Their day begins. He is assigned a driver and a car. On arrival at the courthouse, their assigned orderly opens their car door, the registrar greets them, court officers bow, and lawyers address them as “Yang Arif” or “My Lord.”

The symbolism is powerful - they are no longer the ordinary man, but the office he holds, the office that commands deference. And as others treat them differently, they, too, begin to see themselves differently.

From glamour to grind

The excitement soon fades. In its place comes the relentless rhythm of judicial life - chamber applications, interlocutory hearings, full trials.

Each day demands intense concentration, constant note-taking, swift rulings, and the projection of calm authority.

The writing of judgments is the sternest test of judicial competence. A poorly reasoned decision can cast doubt on a judge’s fitness for judicial office; a well-written one consolidates their position.

They labour long nights and weekends reflecting and writing. It is a challenging task that never gets easier with time.

Justice Benjamin Cardozo of the US Supreme Court observed: “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by. We, too, are subject to passions and prejudices, but we must strive to rise above them in the name of justice.”

And Justice Gopal Sri Ram of Malaysia captured judicial duty in these words: “Judges must also act impartially without fear or favour. A good judge… must not betray the oath of this high judicial office… He must also be passionately committed to defending the fundamental principle of the rule of law and the Constitution.”

The judge’s social circle narrows. The laughter of raucous dinners with lawyer friends gives way to quiet lunches with fellow judges.

Judicial independence demands social distancing; friendship gives way to more discreet interaction. Slowly, the judge discovers the loneliness of their calling.

A noble but lonely calling

A judge’s vocation is a noble but solitary one. The judge must be learned in law, wise in human affairs, and steadfast in conscience.

The dishonest judge, it is said, has a special place reserved in hell. Some rumours swirl through the chambers of errant judges.

There was that anonymous letter by a judge and that affidavit by a sitting judge. But these were unproven allegations, and generally, judges are respected and held in very high esteem.

A judge does not decide cases arbitrarily. He is bound by the principle of stare decisis, which requires him to follow precedent where the facts, issues, and law are similar.

Yet within those constraints lies room for creativity and moral courage - to interpret, to distinguish, and to find justice within the law. Each day, they must balance law, truth, and fairness.

As Justice Oliver Wendell Holmes Jr said: “The life of the law has not been logic; it has been experience.”

And former chief justice Tengku Maimun Tuan Mat said this in a speech in Indonesia in 2021: “The task of a judge is onerous and is reflected in the oath that we judges take, namely to bear true faith and allegiance to Malaysia and to preserve, protect and defend the Constitution. Undeniably, judging requires knowledge, integrity and courage.”

Comparative perspectives

Across the common law world, judges share a kinship of purpose and burden in their pursuit of truth and justice.

In England, centuries of tradition surround the judiciary. Their judgments are scrutinised immediately by lawyers, academics, and the press.

The pressure for clarity and correctness is intense, tempered only by the knowledge that appellate judges may later critically dissect their reasoning.

In the US, the Supreme Court justices are the best known in the world. Though their rulings apply only to Americans, their influence extends globally.

Their power to interpret the Constitution gives them vast authority - but also exposes them to intense political storms between conservative and liberal ideologies. It is the force of their reasoning that influences.

The US Supreme Court

In Malaysia, the pressures are different but equally formidable. Judges face heavy caseloads, limited resources, and the complexity of deciding cases in a multi-ethnic and multi-religious society.

As former Lord President Suffian Hashim once said in a public lecture: “In a multi-racial and multi-religious society… while we judges cannot help being Malay or Chinese or Indian… we strive not to be too identified with any particular race or religion… so that nobody reading our judgment with our name deleted could with confidence identify our race or religion.”

Judges must constantly work to sustain public confidence - the judiciary has been shaken at times by crises of the past.

Their judgments, often written in solitude, ripple far beyond their chambers, shaping commerce, politics, and the delicate balance between state power and individual freedom.

Their authority devolves through the Constitution. They are the ultimate arbiters and interpreters of the Constitution. They safeguard our democracy and our freedoms.

The weight of office

After years on the bench, some judges ascend to the appellate courts, bearing new titles and expectations.

Their manner changes - they walk with quiet authority, conscious of the dignity their office commands. It is not arrogance but awareness - of the heavy mantle they wear, and the eyes of a nation that watch them.

A judge is, at their best, a servant of justice and a guardian of the law. Their life may be lonely, but it is a life that matters.

Within their courtroom, the fate of individuals, the liberty of citizens, and sometimes life itself, hang on their words.

The judge’s charge

Across centuries and continents, the message remains unchanged: For Lord Denning, the duty of a judge is to find the truth and do justice according to law.

Justice Cardozo urged judges to rise above their passions. Former Lord President Salleh Abas warned judges that without integrity, the rule of law becomes an empty phrase.

Gopal Sri Ram reminded judges that justice must be done without fear or favour. Suffian emphasised that judges must be blind to the race or religion of those who appear before them.

Raja Azlan Shah emphasised the importance of judicial independence. Judge Zainun Ali stressed the importance of judicial power, judicial independence, and the doctrine of separation of powers within our constitutional framework.

Tengku Maimun forcefully maintained that core elements of our Constitution could never be removed.

Former Chief Justice Tengku Maimun Tuan Mat

Judge Nalini Pathmanathan is quoted as saying that independence meant to her “the independence and freedom to adjudicate on the cases before her not only in terms of freedom from influence, but also the ability to study, absorb and analyse the law, be it statute or case-law from Malaysia and numerous other jurisdictions.”

Heavy is the burden on the shoulders of a judge.

Finally, when the trappings fade - the cars, the robes, the ceremonial bows cease or pass - what remains is the written judgment itself: reasoned in law, tempered by humanity, and anchored in conscience.

That is what endures. It is written testimony to a country’s adherence to the Rule of Law. That is the legacy of a judge.

In the words of Lord Bingham: “The rule of law is not a slogan or a mere lawyer’s construct. It is the foundation of a civilised society”.

DAVID DASS is a distinguished Malaysian lawyer