(Sept. 6, 2017) On August 18, 2017, the parliament (Pyidaungsu Hluttaw) of Burma (also called Myanmar) adopted minor amendments to the country’s 2013 Telecommunications Law. (Akira Tomlinson, Myanmar Parliament Amends Speech-Restricting Telecommunications Law, PAPER CHASE (Aug. 20, 2017); The Telecommunications Law (Oct. 8, 2013), Ministry of Transport and Communications website.) The amended Law “permits judges to release people on bail, allows only those directly affected, or with permission from those directly affected, by the offense to press charges, and reduces the maximum prison sentence to two years” for a range of offenses under article 66, but leaves unaltered article 66(d), a highly controversial clause that restricts freedom of speech. (Shoon Naing & Yimou Lee, Myanmar Retains Tough Clause in Communications Law Despite Calls for Repeal, REUTERS (Aug. 18, 2017).)
Article 66(d) and Other Provisions on Violations of the Law
The penalty provisions of the Law are articles 65 to 73; the controversial article 66(d) bans the “[e]xtorting, coercing, restraining wrongfully, defaming, disturbing, causing undue influence or [threat] to any person by using any Telecommunications Network.” (The Telecommunications Law, art. 66(d).) Other offenses listed under article 66 include:
(a) Accessing and disturbing a Telecommunications Network, altering or destroying the determination of technical standards or the original form without the permission of the owner or a person who has the administrative right.
(b) Releasing a virus or using any other means with an intention to cause damage to the Telecommunications Network.
(c) Stealing, cheating, misappropriating or mischief of any money and property by using any Telecommunications Network. (Id. art. 66.)
Formerly, the maximum prison term that might be applied upon conviction for these offenses was three years, but now it is two, as was noted above; a fine, or both imprisonment and fine, may also be imposed. (Id.; Naing & Lee, supra.)
According to the free speech advocacy organization Article 19, in addition to article 66(d), articles 40, 76, and 77 of the Telecommunications Law, “which provide powers of warrantless entry and emergency interception under broad circumstances not subject to prior judicial review,” are also “onerous provisions which have been used to severely limit freedom of expression and freedom of the media.” (Myanmar: Telecommunications Law, ARTICLE 19 (Mar. 9, 2017).) As a result, Article 19, contends, “the courts or other independent authorities are prevented from reviewing surveillance of, or access to, subscriber information and communications.” (Id.)
Reportedly, some 41 cases related to 66(d) offenses were before the courts as of December 2016, and since the installation last year of the government led by the National League for Democracy (NLD) party of pro-democracy advocate Aung San Suu Kyi, there have been 17 journalists charged or arrested under the Law. (Hein Ko Soe & Kean, supra; Naing & Lee, supra.) The 2013 Telecommunications Research Group, moreover, which documents prosecutions under article 66(d), has indicated that at least 71 people are known to have been charged for online defamation under the law. (Burma: Repeal Section 66(d) of the 2013 Telecommunications Law, Human Rights Watch website (June 29, 2017).)
Views of Article 66(d)
Activist poet Maung Saung Kha, part of a group that has protested against article 66(d), was sentenced in May 2016 to six months’ imprisonment for posting a poem on Facebook deemed to defame the president; he was released due to time served. (Hein Ko Soe & Thomas Kean, 66(d): The Defamation Menace, FRONTIER (Jan. 13, 2017).) In a joint statement issued in June 2017, 61 human rights groups, including Human Rights Watch, called for repeal of the clause, noting, “[i]n the last two years, this law has opened the door to a wave of criminal prosecutions of individuals for peaceful communications on Facebook and has increasingly been used to stifle criticism of the authorities.” (Burma: Repeal Section 66(d) of the 2013 Telecommunications Law, supra.)
Nevertheless, some members of the NLD, which has a majority in both houses of the parliament, have defended the Law as it stands. They argue that it helps restrain hate speech and false news, given the dramatic rise in the use of social media in the country since government reforms were instituted in 2011. (Naing & Lee, supra.) Moreover, according to senior NLD member Han Tha Myint, a “majority of parliamentarians” were glad of the protection the Law provides against online criticism. He stated, “I don’t mean they’ll sue everybody who criticizes them, but they like this [clause 66(d)].” (Id.)