If one thing is clear in Myanmar in the wake of the February coup it is that the country’s legal system leaves a lot to be desired, particularly under what appears to be an increasingly cruel military junta.
The recently passed amendments to the country’s Broadcast Law are a case in point.
Passed on 1 November with little fanfare or public or international reaction, the Second Amendment Law to the Television and Radio Broadcasting Law, Law No. 63/2021 (Second Broadcasting Amendment) is a seriously worrying piece of legislation - and not just for broadcasters.
Few need reminding that Myanmar’s current judicial system and actions of the police and judiciary are landing a lot of politicians and ordinary people in trouble. Check out the charges against the country’s former leaders Aung San Suu Kyi and Win Myint, those brought against Australian economic advisor Sean Turnell and the heavy sentences levied against American journalist Danny Fenster and at least three ageing National League for Democracy members.
The junta appears to be throwing the book at what it perceives to be its enemies.
And so it is with some trepidation that experts are examining this latest development in Myanmar’s troubled legislative infrastructure.
What will the newly amended Broadcast Law mean not just for broadcasters and those in the media but also ordinary Myanmar citizens who might get caught up in this new dragnet?
The Second Broadcasting Amendment was brought in under Section 419 of the Constitution of the Republic of the Union of Myanmar, which provides that, during a state of emergency, the “Commander-in-Chief of the Defence Services to whom the sovereign power has been transferred shall have the right to exercise the powers of the legislature, executive and judiciary.” No public consultations were held before the adoption of this piece of legislation.
In essence, the amendments alter the country’s first Broadcast Law brought in under the Thein Sein regime in 2015. The core changes to keep in mind are the criminalization of certain activities and the adding of prison sentences on top of fines.
IMPORTANT CHANGES
While the passage of the changes prompted little in the way of local or international media coverage, certain watchdog groups such as the Centre for Law and Democracy (CLD) and Free Expression Myanmar (FEM) took note and issued warnings.
As CLD notes in their analysis of the amendments to the Broadcast Law, the main changes effected by these amendments were, first, to substantially expand the scope of the definition of “broadcasting” in section 2(a) of the 2015 Broadcasting Law, No. 53/2015 (Broadcasting Law), to also include “any other technology for the people to directly catch the television and radio programmes” while removing the following limitation from the earlier definition: “In this definition, Internet-based broadcasting shall not be included.”
Second, the penalties in sections 96-99, which had hitherto been limited to fines, all had prison sentences – of varying lengths but ranging between a minimum of six months and a maximum of five years – added to them.
Third, a new section 99-a was added, providing for fines of between MMK 10,000,000 and 50,000,000 (approximately US$5,500-27,500) and imprisonment of between one and five years, for breaching any subordinate rules (such as by-laws, rules, regulations or orders) which had been adopted under section 106 (providing for the adoption of such subordinate rules).
Finally, a new section 105-a provides that offences under the law shall be cognizable offences, meaning that police can arrest for such offences without a judicial warrant.
PROBLEM FOR THOSE CRITICAL OF THE REGIME?
As the CLD notes, all of these changes are highly problematical from the perspective of international law standards relating to freedom of expression and criminal due process.
Indeed, looking at them as a package, the NGO says, it seems hard to avoid the conclusion that the main intention behind these changes is to allow for the imposition of prison sentences on individuals who disseminate audio or video content online which is critical of the military regime.
But crucial to understand is that it is not easy to work out what behaviour could land a person in jail and/or face a fine.
As CLD points out, the exact nature of the expansion of the scope of the definition of “broadcasting” through the Second Broadcasting Amendment depends on what is understood by the term “television and radio programmes”. Neither this, nor either “television” or “radio” separately, are defined in the Broadcasting Law. It seems quite clear that the intention behind these amendments, given that they removed the explicit exclusion of “Internet-based broadcasting”, is to cover the dissemination of at least certain types of video or audio content online.
What is not clear is how far this will go. At one extreme, it could be deemed to cover even a video or audio clip disseminated over commercial websites such as YouTube, Facebook or TikTok. Other options are that it would cover: anyone who disseminates video or audio content over a private website, anyone who regularly disseminates video or audio content, or perhaps only those who include news among their offerings; print media outlets that also disseminate video or audio content (which is virtually all such outlets today); or only online entities that more closely resemble radio or television stations. Yet another possibility is that the scope of this will be defined through subordinate legislation, such as by-laws, rules or regulations.
FREEDOM OF EXPRESSION?
According to international law, any restriction on freedom of expression must be set out in a law that is clear and accessible, CLD says.
The implications of expanding the scope of the definition of “broadcasting” in Myanmar makes it very clear that this does represent a restriction on freedom of expression. As such, the very fact that the scope of the new definition is so unclear renders it illegitimate as a restriction on freedom of expression.
The most significant implication of expanding the scope of the definition of “broadcasting” is that any entity which wishes to engage in broadcasting must, under section 31(a) of the Broadcasting Law, obtain a licence before starting broadcasting activities. Under section 14(b) of the Law, the Council is responsible for issuing broadcasting licences, while sections 31-36 set out reasonably detailed rules governing the licence application process. It is quite clear from these rules that the issuing of licences is a discretionary matter which depends, among other things, on “broadcasting policy, the interest of potential broadcasters and market capacity and the public interest” (section 34(a)).
The Broadcasting Law also sets out various grounds for revoking a licence, including a serious violation of the legal rules or programme standards (section 42(d)). Licensees must also pay a licence fee (section 45). Operating a broadcasting service without a licence is, under sections 92, 93 and 95, prohibited, subject to fines and now, with the amendments, prison sentences (see sections 96, 97 and 99).
PRINT MEDIA?
According to international law, while it is legitimate to require broadcasters to obtain a licence, it is not appropriate to require this of the print media. Indeed, even registration requirements for the print media are looked on with suspicion under international law and are not legitimate if they grant officials the discretion to refuse registration, CLD says.
For example, in their 2003 Joint Declaration, the UN Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, and the Organization of American States (OAS) Special Rapporteur on Freedom of Expression stated:
Imposing special registration requirements on print media is unnecessary and maybe abused and should be avoided. Registration systems which allow for discretion to refuse registration, which imposes substantive conditions on the print media or which are overseen by bodies that are not independent of government are particularly problematical.
The fact that print media outlets offer audio and audio-visual content through their websites, already an increasingly common practice at the time the 2003 Joint Declaration was adopted, clearly does not affect this standard.
Although the special rapporteurs have not specifically addressed the issue of licensing of Internet activities, this issue was addressed in the Council of Europe’s Declaration on freedom of communication on the Internet, Principle 4 of which states, in part:
Furthermore, the active participation of the public, for example by setting up and running individual websites, should not be subject to any licensing or other requirements having a similar effect.
POLICING INDIVIDUALS
It is impractical to try to impose a licensing requirement on the activities of individuals through social media and this would, in any case, represent an even more serious breach of the right to freedom of expression than licensing individual websites.
As CLD points out, the question of whether it is legitimate to require online entities that effectively operate as radio or television stations to obtain a licence is more complex. This is not the practice in a large majority of democratic States. An important reason for this is that scarcity, which is a key justification for licensing other broadcasters, simply does not exist online. Furthermore, licensing online broadcasters would likely constrain the growth and development of this sector, undermining diversity, key freedom of expression value. There is an ongoing debate about how to ensure fair competition between licensed broadcasters and the large on-demand or over the top services with which they now compete, such as Netflix or Amazon Prime Video, which operate largely free of regulatory constraints.
At a minimum, to be legitimate under international law, any requirement for online broadcasters to be licensed would need to include a very clear definition of which services it applied to, which should be limited to entities that effectively operate as radio or television stations, and be justified by reference to a legitimate aim, such as fair competition or the promotion of diversity. This clearly does not apply to non-profit operators which would, as a result, need to be excluded from the obligation to obtain a licence. The Second Broadcasting Amendment brought in by the Myanmar authorities clearly fails to meet these standards.
The Broadcasting Law also sets out a number of specific rules relating to different types of broadcasting services – public service, commercial, community, government and broadcast distribution services (sections 46-66) – and then a number of rules that govern all broadcasting services.
Some of the latter include:
• Allocating minimum percentages of time to programmes produced locally and by independent producers (section 67).
• Broadcasting programmes for special audiences (section 69).
• Preserving programmes for 28 days (section 70).
• Providing programmes of “high historical value” to various archival bodies (section 71).
• Respecting various rules relating to advertising (sections 72-4).
• Respecting the broadcasting code of conduct (sections 75-82). The code shall impose a number of obligations on broadcasters, including to respect balance and impartiality in the news, to strive for accuracy in the news, to classify programmes, to show respect in terms of taste and decency, and in relation to religion, human rights issues and the coverage of crime.
• Rectifying mistakes and providing a right of reply (sections 84-6).
OPAQUE AMENDMENTS
CLD notes that it is quite clear that while it may be legitimate to impose these sorts of requirements on professional broadcasters, and potentially also on the audio and video content disseminated by print media outlets, these sorts of requirements are entirely inappropriate for most of the audio and video content disseminated over social media platforms or through other private websites (other than those operated by professional media). Consider, for example, the absurdity of requiring a commercial company that hosted an advertising video clip on its website to offer a right of reply or to produce programmes for special audiences, or even of requiring a private video blogger to allocate time to independent producers. The code of conduct, in particular, is specifically designed to apply only to professional broadcasters.
NGOs such as CLD and FEM are voicing concern that these significant changes to the 2015 Broadcast Law are particularly suspicious given they come after the military kicked out the civilian administration and grabbed power.
The Myanmar junta is using a variety of methods to crack down on media criticism and freedom of expression. The Second Amendment Law to the Television and Radio Broadcasting Law, Law No. 63/2021 (Second Broadcasting Amendment) appears to be yet another weapon in their arsenal.
The question is who will get caught up in its net?
