The Telecommunications Law, Freedom of Speech and Freedom of the Press
By Bo Kyi 1 June 2017
I have learned that problems should be solved so as not to make them worse. We have noticed a worrying trend that individuals are being detained under Article 66(d) of the Telecommunications Law for insulting state leaders. In addition, we have found that it is frequently third parties, and not the victims themselves, who are filing charges under this law.
The Telecommunications Law is made up of 19 chapters and 89 sections, chapter 18 detailing offenses and penalties. The Telecommunications Law was enacted under the previous Thein Sein government. It has, and is, being used to stifle political dissent and should be brought before Parliament to discuss its repeal or amendment under the new NLD government. While there are other issues with the Telecommunications Law, this discussion is focused on Article 66(d) due to its increasing popularity over the last year.
Chapter I of the Telecommunications Law is inclusive of definitions, among these, ‘Telecommunications’ is defined as ‘The transmission or reception of information in its original or modified form by wire, fiber optic cable or any conducting cable or by means of radio waves, light rays, or other forms of electromagnetic transmissions;’ and ‘Telecommunications Network’ as ‘A system that utilizes any telecommunication technology to connect a network of communication facilities, telecommunication equipment, computers, any peripherals used in conjunction with any or more of the above, through a compatible system and equipment by means of any form of wired or wireless communication technology.’
With these two definitions in mind, the Telecommunications Law, section 66(d) states:
66 ‘Whoever commits any of the following acts, on conviction be punished with imprisonment for a term extending to a maximum of three years, and shall be liable to fine or both:
(d) Using a telecommunication network to extort, threaten, obstruct, defame, disturb inappropriately influence or intimidate.’
At present, those who use telecommunication tools like email, messaging services and social media in Burma must carefully review the news they share before doing so. If individuals post on social media, it is available to be recorded and used as evidence in a legal case. If individuals want to criticize government or military leaders, it should be done so through proper channels, rather than through insults, dirty language, and personal attacks. Without taking these precautions, individuals are at risk, as Article 66(d) has quickly and unexpectedly become a tool used to stifle those who speak out.
The government should not act against such minor cases such as defamatory social media posts. If the government would like to prevent such statements, it should educate and encourage the population to constructively criticize government policy and actions rather than insult individual members of the government on a personal level.
The provisions of Article 66(d) are already enacted in other criminal legislation. For instance, Article 500 of the Penal Code detailing ‘defamation’ is one example. The differences lie in the punishment. The Telecommunications Law states ‘[…] three years or a fine or both’; the Penal Code states ‘[…] two years or with fine or both.’ On conviction, the penalties are more severe under the Telecommunications Law.
Article 66(d) is an unnecessary provision in the Telecommunications Law. Its punishments are severe in relation to the crime, and there are other laws within Burmese domestic legislation that cover the same issues. Article 66(d) of the Telecommunications Law should be removed. It is better for the country’s future if we try to solve problems by discussing them patiently while fostering a culture of democracy and requiring reform from all sides.
Arrests should only be made if there is no other choice. There are many disadvantages behind the arrest of an individual. If an individual is arrested, he has lost, and the country has also lost, due to the use of the national budget. After an arrest, it is the responsibility of the state to ensure the basic needs and healthcare of the detained individual. Burma is unable to allocate enough funding to prisons. If sufficient food, medical treatment and general conditions are not adequate, the dignity and health of prisoners will decline. It is possible that prisoner lives will be at risk from the conditions they are subjected to.
One major problem in Burmese prisons is the issue of overcrowding. This is in part due to an imbalance between crimes and punishments. Many prisoners are serving harsh sentences for minor crimes—for example, those incarcerated under Article 66(d) of the Telecommunications Law. One of the main intentions of prison reform policy—addressing prison condition issues, is negatively affected by the inability to allocate sufficient money to prison reform, which perpetuates the cycle of inadequate prison conditions.
One of the major issues is that the Burmese population’s knowledge of the law is weak. Burma needs to provide awareness more widely to the people regarding the law. It cannot be assumed that 51 million people have knowledge of the legal system if they only have access to information the government states in the media. While exercising the right to freedom of expression and freedom of the press, everyone needs to take personal responsibility not to insult others.
Bo Kyi is the joint secretary for the Assistance Association for Political Prisoners (AAPP).