Myanmar: Digital Content Regulation 2. Freedom of Expression and the Regulation of Online Speech To derive the maximum economic, cultural and expressive benefits from the Internet, it is imperative that people be allowed to interact and communicate freely online. This does not mean that States may not regulate the Internet, but great care is warranted when doing so in order to preserve the important expressive value of the Internet, which is based, among other things, on its open and borderless nature. Any legislation or other rules that impact freedom of expression, including content restrictions on digital speech, should be consistent with recognised international human rights standards. As noted above, this means that any restrictions on content should meet the following three-part test: 1. The restriction should be provided by law. 2. The restriction should aim to protect one of the following interests, namely respect for the rights or reputations of others, national security, public order, public health or public morals. 3. The restriction should be ‘necessary’ to protect that interest. According to a September 2011 General Comment by the UN Human Rights Committee (HRC), the official body responsible for overseeing States’ compliance with their ICCPR obligations, to meet the first standard, a law must be “formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly” and it must also be publicly accessible and not confer undue discretion on those charged with applying it.9 Unduly vague restrictions or restrictions which grant excessively discretionary powers of application to authorities fail to meet the main purpose of the ‘prescribed by law’ part of the test, which is to grant the power to restrict freedom of expression only to the legislature. In addition, unduly vague rules give way to a wide range of possible interpretations. This falls short of the democratic requirement that individuals be given reasonable and clear notice of exactly what is prohibited so they can regulate their behaviour accordingly.10 As far as the ‘necessary’ criterion, under international law this includes four key elements. First, there must be a pressing or substantial need for the restriction; minor threats do not pass this threshold test for restricting freedom of expression. Second, the approach taken must be the least intrusive manner of protecting the legitimate aim. If alternative measures would accomplish the same goal in a less intrusive manner, the measure chosen is clearly not necessary. Third, the restriction must impair the right as little as possible in the sense that it is not ‘overbroad’. Fourth, a restriction must be proportionate. Proportionality is assessed by weighing the likely effect of the restriction on freedom of expression against its benefits in terms of the legitimate aim being General Comment No. 34, 12 September 2011, CCPR/C/GC/34, para. 25. Centre For Law and Democracy and International Media Support, Briefing Note Series: Freedom of Expression (2014), pp. 5-6. Available at: http://www.law-democracy.org/live/wpcontent/uploads/2012/08/Briefing-notes.full-version.Eng_.pdf. 9 10 -4-