Myanmar Telecommunication Law Subsection 66(d) is rather infamous for its ability to curtail freedom of speech in Myanmar. It is being used by the Myanmar military (former dictators), their cronies, Myanmar’s champion of democracy, NLD and its supporters to suppress journalist and critics.
Myanmar Telecommunications Law Subsection 66(d)
Right now, the law itself is being revised. I got excited until I found out that the law itself is not being revised but the related punishment is being revised. Currently, violation of 66(d) is an unbailable offence that carries up to 3 years of prison. The new proposal will make it a bailable offence with maximum of 2 years prison time and removal of the clause “… coercing, restraining wrongfully, causing undue influence”. And third parties will no longer be able to sue anymore, which is a good thing.
So, in reading of the law, you can play a game of “One of these things is not like the others”. You will quickly conclude that defaming and disturbing doesn’t really belong in there. After all, it is a telecommunications law.
Let’s skip the disturbing and get on with defaming, it is a serious and valid issue. However, I personally do not feel that defamation is a criminal issue, even though in some countries around the world, it is. At the same time, criminalization of defamation is a violation of the Article 19 of the Universal Declaration of Human Rights, which is a binding international law and Myanmar is signatory nation.
“Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.”
So, let’s look at a handful of countries on how they handle defamation: US, UK, India and China.
In the US, generally, a few things do not count as defamation:
- If the expression of true
- If the expression is a fair comment or criticism
- If the expression is an opinion
- If the expression is ridiculous and clearly not true
- If the expression is matters relating to public affairs
Both plaintiff and defendants need to prove their cases.
In the UK, allowable defenses against defamation are:
- If the expression is true
- If the expression is a fair comment
- If the expression is made in parliament of in court
- If the expression is matters relating to public affairs
- If the freedom of expression outweighs the protection of reputation
It is up to the defendant to prove that the expression is not defamatory. However, to collect damages, a public official or public figure must prove actual malice intent.
In India, there are many exceptions to the defamation:
- If the expression is true
- If the expression is about public servants, government offices or courts and is expressed in good faith respectfully
- If the expression is an opinion of a publicly available works
- If the expression is matters relating to public affairs
In China, similar laws exist with regards to defamation. If the expression is true and is expressed respectfully, the defendant is not liable.
One of the key element that keeps popping up in my research is the truth prevails in the defense from defamation accusations. Which brings me to my next point. Fame or (theit kar) is something that one earns over time through words and actions. There should not be an assumption that fame (theit kar) is always in positive status for the plaintiff. For example, a thief should not able to bring a defamation cases against someone who Facebook post a picture of the thief stealing something or enjoying the fruits of his/her crime.
The next crucial point is that public servants, politicians and other public figures will always be criticized for one reason or another at some point. They need to grow a thick skin. It’s part of the job. It is wrong to keep throwing people who criticize them in jail.
Last but not least, for any civil or criminal proceeding, burden of proof for intent to defame with malice and quantifiable damages should always lie with the plaintiff. For example, noticing that colors of two different articles of clothing should not constitute an intent to defame nor criticizing a publically released film.
Going through different defamation laws in different countries, I noticed that the Telecommunications Law 66(d) is a poorly written law, just like Penal code Subsection 295(a), that allows for wildly generalized application. It is being abused and used to undermine freedom of speech. I do think that now is the time and the opportunity to revise 66(d) in a meaningful way and not a superficial modification to look like you’ve been working.