Curtailment of freedom of expression Criminal Code The Criminal Code is increasingly used to curb freedom of expression, and provides for heavy and disproportionate punishments for violators. While there is no mention of online speech in the Criminal Code, case studies show that provisions used to limit freedom of expression are applicable in the online world. These provisions can be classified in various categories, outlined below. Defamation and related offences Provisions on defamation are often invoked to target opposition figures or those critical of the government. In March 2017, the ASEAN Parliamentarians for Human Rights (APHR) warned that “criminal trials over cases of alleged defamation have become prevalent and normalized.”55 Article 305 outlines the definition of public defamation: “Any allegation or charge made in bad faith which tends to injure the honour or reputation of a person or an institution.”56 This article provides for infringements on freedom of expression by not requiring an actual harm to an individual’s honour or reputation but by stating that a charge only needs to tend to harm reputation and honour.57 Moreover, the commission of the offence merely requires that the defamation be made by means of “any words whatsoever uttered in a public place or in a public meeting.” This implies that individuals may be prosecuted for private conversations. Defamation is punished by a fine of 100,000 to 10 million riels (USD 24 to USD 2,400). Many Cambodians would not be able to pay a heavy fine, which would lead to their imprisonment for 10 days to two years (Article 525 of the Cambodian Code of Criminal Procedure). The blanket criminalisation of all forms of defamation is not consistent with international human rights standards and best practices, and, in particular, the existence of such a broadly drafted criminal offence must be considered to be disproportionate. While defamation laws can be a permissible restriction on freedom of expression to protect the reputation of others, the UN Human Rights Committee has made clear that such laws must not in 55 ASEAN Parliamentarians for Human Rights (APHR). (2017). Death Knell for Democracy. aseanmp.org/wp-content/uploads/2017/03/ APHR_Cambodia-MPs-Report_Mar-2017.pdf 56 Criminal Code (2009). English translation referenced from: sithi. org/admin/upload/law/Criminal_Code_Book_with_cover_ Jan_2014.pdf 57 CCHR. (2014). The criminalization of defamation and freedom of expression in Cambodia. cchrcambodia.org/admin/media/ analysis/analysis/english/2014_05_27_CCHR_Briefing_Note_ Defamation_in_Cambodia_(ENG).pdf practice stifle freedom of expression, that they should include defences such as truth and public interest in the subject of criticism, and that application of the criminal law should only be permitted in the most serious cases.58 In its General Comment No. 34 (2011) on Article 19 of the ICCPR (Freedoms of opinion and expression), the Human Rights Committee further called on ICCPR states parties to “consider the decriminalization of defamation” and noted that “the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.”59 It is worth mentioning that on 21 April 2006, the RGC removed the custodial sentence of eight days to one year for defamation under Article 63 of the 1992 Criminal Law, commonly known as the UNTAC Law.60 Case study 1: Sam Rainsy On 28 July 2016, the Cambodian opposition leader Sam Rainsy was convicted of defamation against National Assembly President Heng Samrin and ordered to pay USD 37,500 in compensation. Mr. Rainsy had posted on Facebook a video clip of a speech by former King Norodom Sihanouk in the early 1980s. Under the video clip, you could read: “We remember that the regime born on 7 January 1979 used their tribunal to sentence our late King Norodom Sihanouk to death by accusing him of being a traitor.”61 On 27 December 2016, Rainsy was convicted of forgery and incitement in relation to this case and was sentenced to five years in prison.62 58 UN Human Rights Committee. (2011, 12 September). Op. cit. 59 The UN Human Rights Council’s recommendation in the Report of the Working Group on Cambodia’s second Universal Periodic Review (A/HRC/26/16, 27 March 2014) that Cambodia “Repeal or amend relevant articles of the Penal Code, such as those regarding defamation or the discrediting of judicial decisions, which would bring Cambodia’s domestic legislation into line with its international human rights obligations on freedom of expression” was noted, but not accepted, by the Cambodian government. See “Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review”, A/HRC/26/16/Add.1. www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session26/ Documents/A.HRC.26.16.Add.1_AV.doc 60 Asian Human Rights Commission. (2006, 24 April). CAMBODIA: New law removes custodial sentence for defamation but restricts freedom of expression. www.humanrights.asia/news/ahrc-news/ AS-078-2006 61 Khmer Times. (2016, 28 July). Rainsy Fined For Defamation Khmer Times. www.khmertimeskh.com/news/27778/ rainsy-fined-for-defamation 62 Sovuthy, K. (2016, 28 December). Jail Time Piles Up for Sam Rainsy. The Cambodia Daily. www.cambodiadaily.com/news/ jail-time-piles-sam-rainsy-122536 CAMBODIA / 45