Analysis: Dealing With Defamation
By Lawi Weng 18 November 2016
RANGOON — After being detained, Eleven Media Group executives Than Htut Aung and Wai Phyo asked the government to abolish Article 66(d) of the Telecommunications Law under which they have been charged by the Rangoon divisional government.
The two men made the statement to an applauding crowd at a police station in Tamwe Township on Nov. 11, and other media outlets have since issued similar statements calling for an end to the statute.
However, Eleven Media Group itself has sued individuals on several occasions under the controversial law, which states that “defamation”—through the use of a telecommunications network—can be punished with imprisonment.
Writer Sithu Aung Myint, one of the individuals against whom Eleven Media has brought such charges, hit back on social media, suggesting that in order to support press freedom, other media groups should have been critical of such lawsuits even when Eleven Media was the plaintiff, and not only the defendant.
Article 66(d) dates back to the military-backed administration of former President Thein Sein, yet the law continues to be used by security forces to punish those critical of them, even in the seven months since the civilian-led National League for Democracy (NLD) government came to power.
According to a statement issued by PEN Myanmar, 29 people have been charged this year under the statute, whereas only three individuals were jailed for it under the previous government.
Many of the cases were put forward by the Burma Army in response to statements made about the Tatmadaw on social media. Those then charged under the article are denied bail, even while the case is under investigation.
Lawyer Robert San Aung pointed out that Burma has yet to develop laws related to the use of the internet. Article 66(d) should be amended first, he said, and then abolished once the country adopts an updated cyber law.
Until it can be abolished, a starting point for amendment could be a provision that allows the accused to be released on bail while an investigation is carried out, Robert San Aung told The Irrawaddy. During 2016, he has represented three defendants who were charged under the law—one was found not guilty, but two were imprisoned.
“We have to be careful when we write for media or post things on Facebook. We’d better have accurate information when we do it. If not, it could be a problem,” he said, given the current legal landscape.
One of the criticisms of Article 66(d), according to Linda Lakhdhir, a legal advisor for the Asia Division of Human Rights Watch, is that the language used in the law is so broad and vague that it is unclear what exactly is prohibited.
“While the English translations of the law vary slightly, in every translation I have seen the terms are lacking in clarity,” she explained. “Laws restricting speech must be written clearly so that people can tell whether or not what they want to say will violate the law, and section 66(d) does not meet that standard.”
As a result, Lakhdhir lamented that people might opt not to speak out rather than risk being charged with a violation.
Even the fact that defamation is deemed a criminal offense by Article 66(d) is problematic, she added, defining the term legally as a false statement that hurts another person’s reputation. There is a “growing consensus in the international community” that “remedies” for defamation should be civil, rather than criminal, Lakhdhir explained.
Ideally, a person who feels they have been defamed should be able to “bring a civil suit seeking an apology, or a correction or, where they can prove monetary harm, monetary damages that are limited to the amount of the harm,” she said.
Myo Myint Nyein, an honorary member of PEN International, told The Irrawaddy that journalists must take responsibility for their own news and respect journalistic ethics; the government, he added, should release those currently being detained in violation of the controversial article.
“For media like us, we need to monitor the situation,” he said, referring to any future political action taken surrounding 66(d). “[The media] needs to educate the public about it. Many people agree that this article needs to be abolished. Parliament needs to review it.”
Myo Myint Nyein’s organization, PEN Myanmar, takes the position that Burma should not have an article like 66(d), and since the law’s approval in 2013, the organization, along with other rights groups, has been lobbying to have it abolished.