Myanmar: Analysis of the Second Amendment of the Broadcasting Law S c o pe o f B r o a dc a st in g The exact nature of the expansion of 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.2 According to international law, any restriction on freedom of expression must be set out in a law that is clear and accessible. The discussion below on the implications of expanding scope of the definition of “broadcasting” makes it very clear that this does represent a restriction on freedom of expression. As such, the very fact that the scope of 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, pursuant to section 31(a) of the Broadcasting Law, obtain a licence prior to starting broadcasting activities.3 Pursuant to 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, 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, pursuant to sections 92, 93 and 95, prohibited, subject to fines and now, with the amendments, prison sentences (see sections 96, 97 and 99). 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 the grant officials the discretion to refuse registration. 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: 2 Normally, under the Broadcasting Law, these would be issued by the Ministry of Information with the consent of the cabinet. 3 See also sections 92, 93 and 95, which prohibit the operation of a broadcasting service without a licence or where the licence has been terminated, revoked or suspended. The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 2