Myanmar: Digital Content Regulation Given that Internet services are run and maintained by private companies, the private sector has gained unprecedented influence over individuals’ right to freedom of expression and access to information. Generally, companies have played an extremely positive role in facilitating the exercise of the right to freedom of opinion and expression. At the same time, given the pressure exerted upon them by States, coupled with the fact that their primary motive is to generate profit rather than to respect human rights, preventing the private sector from assisting or being complicit in human rights violations of States is essential to guarantee the right to freedom of expression.26 Theoretically, the fact that these activities are conditioned on not affecting fundamental rights should provide some protection against abusive behaviour, and this provision is welcome. However, this is a very general clause and it is unlikely that it would be used to impose real constraints on government action under this provision. Instead, what is needed is clear and precise conditions for the exercise of this power, such as an imminent threat of serious harm to a specific national security interest. Section 77 gives the relevant ministry the power, when an “emergency situation arises”, and in the public interest, to direct a telecommunications service provider “to suspend a Telecommunications Service, to intercept, not to operate any specific form of communication, to obtain necessary information and communications, and to temporarily control the Telecommunications Service and Telecommunications Equipments.” These are, once again, vast and highly intrusive powers. While they are subject to certain constraints – namely that there be an emergency situation and that the measure be in the public interest – these are extremely vague (no definition of either an emergency or the public interest is given) and are unlikely to constrain the use of this provision much. Instead, as with section 75, specific conditions should be incorporated directly into the provision. Suspending a communications service, whether for one individual or for a section of the public, is an extreme measure. The special international mandates on freedom of expression stated, in their 2011 Joint Declaration, that a general cutting off of Internet services was never justified: Cutting off access to the Internet, or parts of the Internet, for whole populations or segments of the public (shutting down the Internet) can never be justified, including on public order or national security grounds.27 Section 77 also allows for wide intercept powers, the problems with which are discussed just above. And giving the State the power to control telecommunications services is even more draconian in nature. In addition to limiting the substantive scope of these powers, at the very minimum a number of procedural protections need to be added so as to ensure Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, A/HRC/17/27 (16 May 2011), para. 44. Available at: www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf. 27 1 June 2011. Available at: www.law-democracy.org/wpcontent/uploads/2010/07/11.06.Joint-Declaration.Internet.pdf. 26 - 15 -