expression.22 He noted that “[u]ndue interference with individuals’ privacy can both directly and indirectly limit the free development and exchange of ideas,” and therefore have a chilling effect on freedom of expression. Regional law In November 2012, the 10 member states of the Association of Southeast Asian Nations (ASEAN) – including Cambodia – adopted the ASEAN Human Rights Declaration (AHRD). The AHRD affords every person the “right to freedom of opinion and expression” under Article 23, including the right to “hold opinions without interference [...] in writing or through any other medium.”23 The AHRD contains a general limitation clause in Article 8 of its opening principles, whose ultimate effect is to undermine its acknowledgement of the non-derogable or absolute nature of several human rights under customary law and the ICCPR. It holds that limitations on the exercise of fundamental freedoms can be subject to a wide range of limiting factors, including “the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society.” This is problematic as its wide scope and potential field of application fail to recognise that some human rights can never, under any circumstances, be restricted by the state. Conversely, derogations from civil and political rights protected by the ICCPR may only be made in strict accordance with the ICCPR itself, and some rights are specifically non-derogable.24 In this context, the AHRD is inconsistent with Cambodia’s international obligations, and in fact, undermines them.25 Governance of online and networked spaces The Law on Telecommunications governs online and networked spaces in Cambodia. It is the only Cambodian law that specifically addresses online activity. Indeed, the law defines telecommunications as “the science and technology in sending and receiving the signals, data, sound, pictures or types 22 La Rue, F. (2013, 17 April). Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. A/HRC/23/40. www.ohchr.org/Documents/HRBodies/ HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf 23 www.asean.org/storage/images/ASEAN_RTK_2014/6_AHRD_ Booklet.pdf 24 ICPPR, Article 4(2). No derogation is permitted from Articles 6, 7, 8(1)(2), 11, 15, 16 and 18. 25 CCHR (2016). Op. cit. of other information by using the energy in the form of electro-magnetic, electricity, radio, light, or other forms.”26 Even though it is not enacted yet, it is also important to consider the draft Cybercrime Law, which would also regulate online content. Law on Telecommunications The 2015 Law on Telecommunications contains multiple restrictions on the right to freedom of expression, which are not in line with Cambodia’s international and constitutional human rights obligations. The law poses a threat to private, confidential communications as well as online public expression and increases the control of the MPTC over the telecommunications sector. Several of the new criminal offences introduced by the Law on Telecommunications can lead to imprisonment and significant fines, and are disproportionate and overly broad. Some of the most serious threats posed by the law can be summarised under the following themes: surveillance powers, criminalisation of expression and restriction of rights, and excessive state control.27 Surveillance powers The Law on Telecommunications gives the government the power to secretly monitor the telecommunications of any individual in Cambodia with a near-complete absence of checks and balances, and no requirement for judicial oversight. Article 6 states: “All telecommunications operators and persons involved with the telecommunications sector shall provide to the Ministry of Posts and Telecommunications the telecommunications, information and communication technology service data.” Under this provision, telecommunications operators appear to be required to pass over data on their service users, without any recourse to judicial or other independent oversight. The meaning of “service data” is undefined in the law and as such could be interpreted to include all user communication records, browsing history and other confidential information. This appears to be in violation of Article 40 of the Constitution, which ensures the right to confidentiality. Furthermore, Article 97 criminalises eavesdropping by private individuals, with sanctions of 26 Law on Telecommunications (2015), Annex: Glossary for using this law. English translation referenced from: sithi.org/admin/upload/ law/20150127_TelecommunicaitonDraftLaw_En%20edited-2.pdf 27 LICADHO. (2016). Cambodia’s Law on Telecommunications: A Legal Analysis. www.licadho-cambodia.org/reports/ files/214LICADHOTelecomsLawLegalAnalysis_March2016ENG.pdf CAMBODIA / 37