Myanmar: Analysis of the Second Amendment of the Broadcasting Law Imposing special registration requirements on the print media is unnecessary and may be abused and should be avoided. Registration systems which allow for discretion to refuse registration, which impose substantive conditions on the print media or which are overseen by bodies which are not independent of government are particularly problematical.4 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.5 It is clearly 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. 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, a 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 which 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 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 4 Adopted 18 December 2003. The special rapporteurs have been adopting Joint Declarations on freedom of expression themes together since 1999, all of which are available at: https://www.osce.org/fom/66176. See also General Comment No. 34, 12 September 2011, para. 39, https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf. General Comments are authoritative interpretations of rights that are issued periodically by the UN Human Rights Committee, the official body that oversees compliance with the International Covenant on Civil and Political Rights (ICCPR), the main UN treaty guaranteeing civil and political human rights. 5 Adopted by the Committee of Ministers on 28 May 2003, https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016805dfbd5. The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 3