A/HRC/39/CRP.2 • Sections 499-502 of the Penal Code, criminalising defamation2848: under international human rights norms and standards, imposing criminal penalties for defamation is an unjustifiable restriction on the freedom of expression. Criminalising defamation dissuades individuals from criticizing officials or government policy. Civil liability proceedings should be the sole form of redress for complaints of damage to reputation.2849 In Myanmar, defamation laws are frequently used against journalists and other media workers for articles critical of the government or of security forces. • Section 505(b) of the Penal Code criminalising whoever makes, publishes or circulates any statement, rumour or report with intent to cause, or which is likely to cause, “fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity”. This provision is too broad and imprecise, according to international human rights norms and standards. Criminally restricting speech because it is “likely to cause alarm” that “may” lead a person to commit an offence against “public tranquillity” cannot be justified as a necessary measure in a democracy. The terminology used is also too vague for an individual to know what is impermissible, and opens the door for abuse by law enforcement officials, notably to silence critical voices. This provision has been used regularly against critics of the Myanmar government or military, for example, in relation to public protests. After the Arakan Liberation Party (AKP) published a statement in April 2016 alleging that the Tatmadaw had committed violations against civilians in Rakhine State, including forced labour and ill-treatment, Khaing Myo Htun, who was at the time the AKP’s deputy information officer, was convicted under sections 505(b) and (c) and sentenced to 18 months in prison, despite having provided evidence to substantiate the allegations.2850 • The Official Secrets Act, penalising the receipt or dissemination of a broad range of documents and information, particularly government documents. Several provisions, in particular sections 3 and 5, are contrary to international norms and standards because they are too broad to be “necessary” in a democratic society. In essence, they cover any type of information, including what may be in the public interest. Restrictions on freedom of expression (including the freedom to seek, receive and impart information and ideas of all kinds) are permissible for the protection of national security but only in serious cases of political or military threat to the entire nation. 2851 Article 5, however, criminalises the disclosure, possession or receipt of documents or information without the requirement of demonstrating that its disclosure threatens national security or public order. The Act can easily be used to deny information to the public and to conceal government wrongdoing. Article 3(1)(c) further includes a particularly broad definition of “spying”, including the making, receiving or communication of any document that is “calculated to be”, “might be” or is “intended to be” “directly or indirectly useful to a foreign country”. The penalty for such forms of spying is imprisonment up to 14 years. The Act does not require actual harm to national security, or even a real risk of such harm. However, the potential usefulness of the information to another country does not necessarily equal a threat to national security. As the case against the two Reuters journalists shows, as detailed below, the Official Secrets Act can be abused to intimidate journalists from undertaking legitimate journalistic work. • Article 66(d) of the 2013 Telecommunications Act, criminalising defamation using a telecommunication network. This provision made seven online acts punishable: blackmailing, bullying, making wrongful restraint on, defaming, disturbing, exerting undue influence on or threatening a person. An amendment adopted in 2017 limited these offenses to extorting, defaming, disturbing or threatening a person using a 2848 2849 2850 2851 Other domestic laws also criminalize defamation, including the Telecommunications Law, the Electronic Transactions Act, and the News Media Law. See A/HRC/14/23, para. 83-84. See also United Nations Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34), para. 47. K-104; A/HRC/34/67; MMR 2/2016. United Nations Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34). 317