Myanmar: Digital Content Regulation Code already has provisions dealing with theft and the misappropriation of property (see sections 403-404). The Telecommunications Law contains yet another criminal defamation provision, in section 66(d), and several high profile and very problematical criminal prosecutions have already been launched under this provision in Myanmar, leading to a number of convictions. Specifically, the provision provides for a penalty of up to three years’ imprisonment for: Extorting, coercing, restraining wrongfully, defaming, disturbing, causing undue influence or threatening to any person by using any Telecommunications Network. This provision is arguably even broader than section 43(d) of the Electronic Transactions Act, since it applies to any material which is “disturbing”, in addition to content which is defamatory. This is very problematical because there is often a high public interest in disseminating material that might be considered “disturbing”. For example, a videotape exposing police brutality might be considered to meet this standard. Section 66(d) is also very problematical inasmuch as it prohibits the dissemination of material which causes “undue influence”. The Penal Code already covers extortion (sections 383-389), threats and criminal intimidation (sections 94, 503 and 507), and wrongful restraint and imprisonment (sections 339-348). Section 66(d) fails to define the notion of “undue influence” in the context of telecommunications, leaving it extremely vague and open to potentially overbroad interpretation. For example, the dissemination of emotive poetry, particularly persuasive essays or high-powered advertisements could all be deemed to create undue influence. The Penal Code contains a number of provisions dealing with the offence of undue influence, but these are restricted to particular situations, such as exercising undue influence over officials (sections 162 and 163) or specifically in the context of elections (sections 171C and 171F). Section 68(a) prohibits the “communications, reception, transmission, distribution, or conveyance of incorrect information with dishonesty or participation”. While it may, superficially, seem appropriate to prohibit the dissemination of incorrect information, leading courts in a number of countries have held that blanket prohibitions on ‘false news’ represent a breach of the right to freedom of expression. In practice, such rules are almost always used for political reasons rather than to protect the public. Thus, in 2000, the Supreme Court of Zimbabwe stuck down a false news provision as being unconstitutional, calling it a violation of the right to freedom of expression.25 The requirement that the dissemination has to be accompanied by “dishonesty” or “participation”, whatever the latter may mean, provides virtually no protection given that it is completely undefined. Chavunduka and Choto v. Minister of Home Affairs & Attorney General, 22 May 2000, Judgment No. S.C. 36/2000 (Supreme Court of Zimbabwe). Available at: http://crm.misa.org/upload/web/CHAVUNDUKA.pdf. 25 - 13 -