An opinion piece by Vani Sathisan, ICJ International Legal Adviser in Myanmar.
To say that Facebook and other internet-based social media networks have revolutionized modern day communication would be an understatement.
According to a report by the Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the global number of internet users has reached more than two billion.
One million log onto Facebook every month. Twitter claims 500 million users and YouTube is viewed about 4 million times per day.
After ideas expressed online have had an instant “viral” spread, revolutions have unfolded .
And so have the prosecutions.
Judiciaries worldwide have had to struggle with what content is defamatory and what is self-expression.
The US Supreme Court, in Elonis v. United States [2015], considered the case of a defendant who had written, and posted on Facebook, apparently violent rap lyrics, including “I want to kill my wife” while he was undergoing a divorce.
The court had to weigh up whether convicting a man of threatening another person requires proof of subjective intent to threaten or whether it would suffice to show that a “reasonable person” would regard the statement as threatening.
It ruled in favour of the defendant stating that “negligence is not sufficient to support a conviction.” The defendant’s lawyer argued that his client was exercising his First Amendment rights and that governments may not prohibit the expression of an idea simply because certain factions of society find it offensive.
Although freedom of expression is universal and widely accepted in practice, it is not an absolute right and governments may, narrowly and exceptionally impose certain limitations attached to it.
Article 20 of the International Covenant on Civil and Political Rights (ICCPR) bears testament to this by stating that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
This is a lot more specific than discriminatory expressions in general and the incitement to “discrimination, hostility or violence” by hate speech is significant for upholding the high threshold it requires.
The International Convention on the Elimination of All Forms of Racial Discrimination, however, goes further and obligates signatories to make “all dissemination of ideas based on racial superiority or hatred” a punishable offense (Article 4(a)).
Myanmar too is struggling with the question of expression that is defamatory, especially in the lead up to its much-anticipated elections. Despite the exponential boom in mobile phone users since SIM cards dropped from $2,000 to $1.50, telecommunications in Myanmar lag behind most developed countries, including its Southeast Asian neighbors.
This has not stopped criminal defamation lawsuits from being filed under the country’s various vague laws on distributing information by electronic technology.
In just under a month, at least two people have been detained without bail under 34(d) of Myanmar’s Electronic Transactions Law and 66(d) of the Telecommunications Law for posting or sharing a post on Facebook, based on complaints lodged by army officials claiming the Myanmar army had been defamed.
If convicted, the accused would be liable for imprisonment of up to five years or a fine or both or imprisonment not exceeding three years or a fine or both, respectively.
The Myanmar’s Electronic Transactions Law is holdover legislation from the former junta, dating back to 2004, signed by General Than Shwe, former junta leader and Chairman of the State Peace and Development Council.
The Deputy Minister for Communications and Information Technology had pledged to repeal parts of the law in 2013, which has been used in the past to imprison activists and political dissidents. That has not happened.
When the run up to the country’s elections has been fraught with severe problems – including inadequate election campaign voter lists, a lack of an independent judiciary and unelected military representatives taking up 25 per cent of the seats in the parliament to preserve a “disciplined democracy”– is it too much to ask prosecutors to exercise their discretion in desisting from moving forward with cases based on weightless Facebook discourse?
Both in terms of justice and effectiveness in law enforcement and fundamental interests of the society, such decisions have far-reaching implications.
Criminal defamation laws that silence free speech online are also incompatible with the right to freedom of opinion and expression and non-compliant with international laws and standards.
The Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights guarantees under Article 19 the right to freedom of expression, which includes the right to impart information.
The UN Human Rights Committee, in expressing its concern at the misuse of defamation laws to criminalize freedom of expression, has clarified that imprisonment is never an appropriate penalty for defamation.
In its General Comment on the issue, the Committee states that, “in circumstances of public debate concerning public figures in the political domain and public institutions, the value placed by the Covenant upon uninhibited expression is particularly high.
Thus the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties… all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition.”
The United Nations Special Rapporteur on freedom of opinion and expression has also reiterated that justifying any limitation on the freedom of expression on the basis of protecting other rights or reputation of others must not be used to protect the State and its officials from public opinion or criticism.
Other international human rights bodies and an increasing number of governments agree that criminal defamation laws must be abolished.
Criminal penalties are a disproportionate means to protect against reputational harm and pose an impermissibly severe impediment to the exercise of free expression.
The Myanmar government should act to ensure that electoral debates can take place in a constructive and respectful space, and that all people and organizations engaged in the protection and promotion of human rights are able to continue their work safely.
If not, then what Sean Turnell, an expert on Myanmar’s economy reportedly said about the Myanmar government eventually increasing its monitoring of cell networks will almost certainly prove true: Technology’s ability to democratize Myanmar has been “overrated.”