61 Rights Groups Urge Govt to Repeal Section 66(d)

[d] of the 2013 Telecommunications Law; or at a very minimum, amend it to ensure that: defamation is no longer criminalised and that where recognisably criminal acts such as ‘extortion’, ‘coercion’, ‘wrongful restraint’ and ‘threats’ occur in the law they are clearly defined in line with international human rights law, so as to ensure it is not used to criminalise the peaceful expression of views,” the joint statement urged.

Section 66 of the 2013 Telecommunications Law states that “Whoever commits any of the following acts shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine or to both.”

Among those acts are Section 66(d), which include “Extorting, coercing, restraining wrongfully, defaming, disturbing, causing undue influence or threatening to any person by using any Telecommunications Network.”

The joint statement added that the current review of the legislation offers an opportunity to repeal Section 66(d) and bring the 2013 Telecommunications Law fully in line with international human rights law and standards. It cautioned that failing to do so would seriously cast the government’s commitment to freedom of expression in doubt.

“Failure to do so would raise serious questions about the government’s commitment to freedom of expression.

“It would, worryingly, leave people in the country at risk of imprisonment simply for sharing opinions online.

“It would also undermine the government’s reform and responsible business agenda, by chilling or even silencing the ability of the public and the media to report on public sector mismanagement, harmful and illegal business practices, and corruption,” the statement said.

According to the statement, the vaguely-worded section 66(d) has allowed for “an abusive application of the law”. Under international human rights law and standards, restrictions on the right to freedom of expression are allowed for certain, narrowly defined purposes only, including to protect the rights and reputation of others. Restrictions should be clear and well-defined legally, limited to those specified purposes, and necessary and proportionate to achieve their aim.

The signatories labelled the current law as inadequately defined, overly broad and vague.

“Section 66[d] does not adequately define what actions would be considered ‘disturbing’, or ‘causing undue influence.’

“These terms are overly broad and subject to widely different interpretations.

“Previous military governments for example, deemed the views of people who promoted democracy and human rights to be ‘disturbing’,” the statement noted.

It went on to say that Section 66(d) has been used to stifle criticism of “both the civilian government and the military”.

The joint statement said that, under international law, the purpose of laws covering defamation, libel, slander and insult is to protect the rights and reputations of people, not to prevent criticism of the government or of individual officials.

It cited UN Special Rapporteurs on the right to freedom of expression and the UN Human Rights Council to argue that public figures are necessarily subject to a greater degree of criticism than private citizens because of their institutional role. This is to ensure open debate about matters related to public interest.

“The high volume of cases brought under Section 66[d] has also been facilitated by the fact that it allows anyone to file a complaint, even individuals other than the person who has allegedly been defamed. As a result, in Myanmar people have filed complaints on behalf of State Counsellor Daw Aung San Suu Kyi and President U Htin Kyaw, as well as members of the military.

“In the past year we have also seen a surge in the number of criminal prosecutions initiated by private Facebook users against each other for posts that they believe to be untrue, insulting, offensive, or otherwise objectionable. These include, for example, Facebook posts saying that someone was a cheat, warning people against using specific businesses, or complaining about land disputes,” it said.

The statement urged the decriminalisation of defamation.

“… international authorities including the UN Special Rapporteur on the right to freedom of expression and the UN Human Rights Committee have affirmed that defamation should never be a criminal offence.

“This is because imprisoning someone for defaming another person is disproportionate and can threaten the right to freedom of expression itself. The threat of imprisonment can prevent people from peacefully speaking out on sensitive issues and lead to self-censorship,” it argued.

The statement suggested other ways to address defamation which do not involve imprisonment, for example through civil law, among other solutions.

The signatories also cautioned against Section 66(d) as a solution to address advocacy of hatred.

“Our organisations are deeply concerned that some members of the administration appear to view Section 66[d] as a solution to address advocacy of hatred. We recognise that Myanmar has a growing problem in this regard and welcome attempts to address this. However, Section 66(d) has done little to prevent such activity. Instead, it has enabled an environment of intolerance and conflict by allowing anyone who deems a Facebook post ‘offensive’ to sue the author,” the statement noted.

The signatory organisations recommended and urged the Myanmar authorities to repeat Section 66(d) and decriminalize defamation.

“As long as Section 66 [d] remains, people in Myanmar – especially those who criticise officials and government policies online – will be at risk of being imprisoned for their peaceful exercise of the right to freedom of expression,” the joint statement concluded.

The statement joins a long line of criticism by legal professionals and human rights advocates against Section 66(d).

Daniel Aguirre, a legal adviser with the International Commission of Jurists in Myanmar, had said that Section 66(d) risks undermining the rule of law.

“Myanmar’s defamation laws, by being either vague or overly broad, also do not conform to the principle of legality. This undermines the rule of law as they are not formulated clearly and precisely to ensure that individuals can regulate their conduct accordingly.

“Notions such as ‘disturbing’ or ‘causing undue influence’, as set out in the Telecommunications Law, are particularly vague and prone to arbitrary and highly subjective interpretation and application,” he said.

He added that in order to ensure the law serves the interests of the people and does not pose a threat to free speech, parliament must “abolish or extensively amend its criminal defamation laws”.

“The capacity of people to freely impart and receive information, including through free political discourse, is critical for a functioning democracy,” he explained.

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This article originally appeared on Myanmar Times on July 03, 2017.