Dateline Irrawaddy: Telecoms Law Must be Amended to ‘Serve Its Intent’
By The Irrawaddy 15 July 2017
Kyaw Zwa Moe: Welcome to Dateline Irrawaddy. This week, we’ll discuss the Telecommunications Law, one of Myanmar’s more controversial laws. There were over 70 lawsuits filed under the Telecommunications Law over the last year. Now, the President has made public the draft law amending it. We’ll discuss whether the draft law will serve as good legislation for the people, and its pros and cons. Ko Than Zaw Aung of Myanmar Media Lawyers Network and Ko Zeyar Hlaing, editor of Mawkun Magazine, join me to discuss this. I’m The Irrawaddy’s English editor Kyaw Zwa Moe.
We’ve read the draft law, which amends the Telecommunications Law. The law has roused much controversy among journalists; it was enacted under U Thein Sein’s government in 2013, but it has been applied more frequently since the government of Daw Aung San Suu Kyi assumed office. So far, seven cases have been filed by the military, six by the NLD [National League for Democracy], and around eight by a third party on behalf of State Counselor Daw Aung San Suu Kyi. Of all these, 14 cases have involved charges against journalists. This is a high rate of incidence for just one year’s time. Ko Than Zaw Aung, you might have read the draft law—what do you think are its advantages, and what disadvantages remain?
Than Zaw Aung: It is good that the draft law requires general power be granted [in order for a third party to file a lawsuit on behalf of an aggrieved party]. What is not good is that there is no [communications ministry] sanction required for courts to accept the lawsuit. There have been many cases brought forward, even while the [ministry’s] approval has been necessary. So if the ministry’s approval is made unnecessary, I wonder how the validity of lawsuits, especially from a technological perspective, will be determined. If a fake account defames somebody, who will take responsibility to determine who should be sued?
KZM: By approval, you mean that the approval of the Ministry of Communications and Transport is required for courts to accept the lawsuit according to the existing law. But in the draft law…
TZA: It is no longer needed to seek the ministry’s approval to file lawsuit under Article 66(d). If the ministry’s sanction is no longer necessary, who will take responsibility for checking if the [Facebook] accounts [that defame somebody] are fake accounts? I haven’t seen judges taking expert opinions into consideration when hearing those cases at trial. Again, judges who administer justice for those cases might not be technologically literate.
KZM: The existing law allows the third party to file a lawsuit on somebody’s behalf. As we have mentioned, any supporter of Daw Aung San Suu Kyi can file a lawsuit on her behalf if she is deemed to have been defamed. The court can accept the lawsuit, administer justice, and issue a jail sentence to the defendant. It is also the case for defamation involving the army chief: a soldier, or anyone, can file a lawsuit on his behalf. So, these new changes can be said to be positive as they no longer allow a third party to file a lawsuit.
TZA: Yes, it is good. It complies with the code of criminal procedures that a third party can file a lawsuit only with the general power given by the aggrieved party. But under the existing law, lawsuits are filed with or without general power.
KZM: We media feel that Article 66(d) [of the Telecommunications Law] is a real threat to the press. What is your assessment of Article 66(d) and the draft law?
Zeyar Hlaing: This concerns not only the media but also every netizen in the country, I think. We need to look at the intent of the law. It was intended to prevent coercion, defamation, disturbances, and so on. We should review whether the law has been applied for this purpose. As far as I’m concerned, the [communications] ministry has not been able to identify fake accounts [regarding the lawsuits filed under Article 66(d)]. Again, there is a need to review how many of those who use fake accounts in those lawsuits have been arrested. So far, I have found that only those who use real profiles have been punished under this law [as opposed to those who use fake accounts to defame and are still at large because the ministry could not identify them].
There is a need to review how many fake accounts—which spread hate speech and make threats against other organizations—have been punished under this law. Otherwise, this law is not able to prevent coercion and defamation as it was intended to do. So, we need to amend the law to make sure the law serves its intent. So far the law has only affected those who use real profiles and take responsibility for their words. Facebook pages of media outlets—for example, The Voice—though being present on social media, only publish reports that have been edited by editors with responsibility and accountability. This law has only been able to bully such people, but has not been able to stop those who are coercing others and spreading hate speech.
KZM: There were only seven such cases under U Thein Sein’s government, and penalties were given in five cases. The number of cases has increased significantly under the new government. The question is to what extent the law serves its stated purpose. Another question is whether this law has been misused for political purposes; there have been more lawsuits filed for political reasons than for other reasons. What is your overall assessment of it?
TZA: My personal view is that Article 66(d) should not be enforced, as is the case for Article 34(d) of the Electronic Transactions Law. The draft law [amending the Telecommunications Law] does not introduce changes regarding punishment. There are provisions in the penal code that cover coercion, disturbances and so on. And there is Article 500 that deals with defamation. The government needs to consider that while the penal code carries two years’ imprisonment [for defamation], the Telecommunications Law prescribes three years’ imprisonment. The whole law was intended for the development of telecoms operators and telecoms networks. But it has been increasingly misused, and is less effective for its stated intentions.
KZM: Ko Zeyar Hlaing, what is your view? Do you support scrapping it, or do you have something else in mind?
ZYH: There are already existing provisions to sue for defamation. But more weight has been placed on it [because of the use of Article 66(d)], and this has put a heavier burden on the people. Particularly if a government calls itself a democratic government, it should respect and ensure the freedom of expression of individuals. In many cases, this article directly or indirectly affects freedom of expression, so the government needs to review this. When we told government officials that the penal code already had provisions concerning defamation, they said it only covered defamation in everyday quarrels between individuals, but that this form of defamation [penalized under Article 66(d)] is about online posts that can spread to the entire world within a short time.
KZM: They mean that such defamation could have a greater impact…
ZYH: Their argument is based on their own opinions. Those who use Facebook are not passive users, but active users. For example, Ko Kyaw Zwa Moe, if you write a fallacious or defamatory post, there will be people who defend your argument, and there will be a debate under your post. Social media platforms are different from traditional media… If you think somebody has written something wrong, you can respond to it within seconds or minutes. So, there are questions—don’t the concerned authorities understand this, or are they technologically illiterate, or are they just basing this on their own opinions?
KZM: More than one year after the NLD government came to power, this article remains unchanged. The government is taking steps to change it now after it has caused much controversy. Anyway, now we can draw the definite conclusion that the neither the government nor the Parliament will scrap this law. It will remain, though there will be changes. So, to what extent do you think the new changes will prevent the law from being misused?
ZYH: We’ll see when the [final] draft law comes out. Nearly two-dozen civil society organizations, including groups lobbying for the amending of 66(d), have proposed a dozen changes to the law. Those groups have reviewed the law and presented recommendations. And we also met with the communications minister some three weeks ago. But our recommendations were not adopted in the draft law. This indicates the [lack of] goodwill from the government. The Parliament will hold a public hearing on the law, so if those groups can go and explain [their recommendations] in the Parliament—and if the parliamentarians have goodwill—hopefully the law can be changed, more or less. But then again, since both the [majority of] Parliament and the government belong to the same party, there is not much hope of change. However, this is my personal view.
KZM: Ko Than Zaw Aung, Ko Zeyar Hlaing, our discussion has mainly been about 66(d). But as everyone knows, one reporter from our news agency The Irrawaddy and two from DVB [Democratic Voice of Burma] were charged [by the military] recently under Section 17(1) [of the Unlawful Associations Act]. But at the same time, there is a Media Law. Everyone says that they were just doing their jobs as journalists and must be able to communicate with armed groups or rebels. In such cases, to what extent does the media law can protect journalists? Or to what extent can the [Myanmar] Press Council or the Information Ministry intervene in line with law?
TZA: As you see, those things happened, and there was no chance for negotiation. The Media Law itself has no negotiating power, though the law says negotiations may be made. Again, it does not include provisions for the protection of journalists, though it includes a list of guidelines—for example, how to gather news in conflict areas. Besides Section 17(1), there are many other articles in legislation and in the penal code that can be used to prosecute journalists. The Media Law must be changed to ensure that journalists are charged only under this law itself, in case they are prosecuted in connection with their jobs as reporters. And the Press Council now needs to think about how to intervene in real time in such cases. In the case of the arrest of three journalists, we didn’t see such interventions.
KZM: As Ko Than Zaw has said, the concerned organization and ministry have not taken any active steps toward intervening. Frankly speaking, the Ministry of Information and the Myanmar Press Council are responsible for doing this. What are your recommendations for them regarding the protection of journalists if they are arrested for doing their jobs?
ZYH: I think the information ministry only cares about publishing the news of the government. It doesn’t seem to have an agenda to promote press freedom and protect journalists. However, the Myanmar Press Council is responsible for promoting and protecting freedom of expression according to the Media Law.
KZM: It is its mission…
ZYH: It should keep its mission [alive]. And as far as I’m concerned, the new government has oppressed the mainstream media. The government has started this and sued Eleven Media. And the military sued The Voice, which is one of the leading newspapers in the country. And it sued [reporters from] The Irrawaddy and DVB, which have been active media outlets since they were in exile. I think the authorities are doing this to make an example of them. Such an idea has been deep-rooted in our country since previous eras. I believe authorities have made an example of them, and journalists will have to exercise extra caution.
KZM: As Ko Zeyar Hlaing and Ko Than Zaw Aung have discussed, this will largely depend on the Parliament. We’ll wait and see to what extent things will develop in a positive direction. Thank you for your contributions!