Amend provision violating free expression rights – HRW


People walking in front of the Sulay Pagoda in downtown area of Yangon. Photo: Ye Aung Thu/AFP

Burmese authorities should not pursue a criminal complaint brought under Burma’s privacy law against a Facebook user for posts critical of a state chief minister, Human Rights Watch said today.

Parliament should promptly amend the privacy law, enacted in March 2017, to eliminate the provision criminalising harm to reputation.

“It’s totally is absurd that Burma is using a law protecting privacy as a club to punish criticism of a government official's job performance,” said Phil Robertson, deputy Asia director at Human Rights Watch. “The police should decline to proceed with this case and parliament should amend the law to prevent such cases in the future.”

Earlier this month, Aung Ko Ko Lwin, from Thaton town in Mon State, posted a video clip of the Mon State chief minister, Dr. Aye Zaw, urging residents of Thaton township to “eat only a dish of curry” at mealtime to bring down food prices. He also posted comments criticising the minister for failing to respond to requests for an electrical transformer for the town’s central market and for LED safety signals at a railway crossing that is the site of frequent accidents.

A member of the Mon State ethnic affairs committee, Saw Kyaw Moe, filed a complaint against Aung Ko Ko Lwin under section 8(f) of the Law Protecting the Privacy and Security of Citizens (“Privacy Law”), alleging that the comments “spoil the image of the town.”

Section 8(f) of the Privacy Law states that “no one shall unlawfully interfere with a citizen’s personal or family matters or act in any way to slander or harm their reputation.” Violation of the law carries a penalty of up to three years in prison and a fine of up to 1.5 million kyats (US$1,100). The provision is, in effect, Burma’s fourth criminal defamation law. Burma already provides penalties for harm to reputation in the penal code, in the controversial section 66(d) of the Telecommunications Law, and in the Media Law. Section 66(d), in particular, has repeatedly been used to punish those who speak critically of the government or government officials.

Since the National League for Democracy-led government took office in January 2016, at least 95 people have faced criminal defamation complaints under section 66(d), according to a recent study by the group Free Expression Myanmar. In most cases, the complainant has been a government official. While parliament amended the Telecommunications Law in August 2017, the defamation provision was left intact, and at least nine new complaints have been filed since then. The amendment did, however, limit those who could file complaints to those allegedly defamed, meaning that Saw Kyaw Moe could not bring his complaint under section 66(d).

The use of criminal defamation laws runs counter to increasing international recognition that imposing criminal penalties for defamation is not a justifiable restriction on freedom of speech. All criminal defamation laws should be abolished and, where necessary, replaced with civil defamation laws. Defamation cases involving public figures are particularly problematic, allowing those in power to penalise their critics or those who seek to expose official wrongdoing, Human Rights Watch said.

“Criticizing the performance of government officials is an essential element of a rights-respecting democracy, and should not be the basis of criminal prosecution,” Robertson said. “Burma’s privacy law is a disaster for freedom of expression, and the parliament should move quickly to amend it to bring it in line with international human rights standards.”

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