Divergences among the six states As we saw in the previous section, there exist several common trends among the six states across Asia. However, there are several divergent trends among the six states as well. First, each state uses a unique combination of legal provisions to target online speech; that is, each state has a certain set of provisions that it uses most commonly to criminalise online speech, but these provisions differ across the states. Second, the definitions of different provisions, while similar, differ across the states; the example of defamation will be used to show such differences. Third, the punishments given to offences differ across the states; the example of hate speech and blasphemy, as well as defamation, will be used to illustrate this. Unique combinations of legal provisions While similar provisions exist across the countries, each state is unique in its choice of go-to provisions to target online speech. No two states use the exact same provisions to commonly and widely target online speech. While they have in common the provisions themselves, in practice, they each have different go-to legal provisions to best control online expression in each of their territories. Prior to 2015, India made extensive use of Section 66A, Information Technology Act, 2000 (as amended in 2008).19 Section 66A criminalised the sending of “offensive messages” through the internet, and stated that the sending of false messages that cause “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will” would be penalised with a jail term extending to three years and with a fine. However, Section 66A was struck down by the Supreme Court of India as unconstitutional, as it violated unreasonably the freedom of expression of citizens.20 Following this, there has been an increase in the use of Section 295A, Indian Penal Code (the hate speech provision).21 One of the most notable cases of the use of this provision involved the arrests of Shaheen Dada, who posted a Facebook post critical of a state bandh or shutdown (it was instituted due to the death of a prominent politician), and Renu 19 Information Technology Act, 2000. Section 66A. http://meity.gov. in/content/information-technology-act-2000. 20 Shreya Singhal v. Union of India, AIR 2015 SC 1524 21 Indian Penal Code, 1860. Section 295A: “Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.– Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India], [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both.” www.lawmin.nic.in/ld/P-ACT/1860/186045.pdf Srinivasan, who liked the said post. In addition to these provisions, India also liberally uses other provisions to target online speech, such as defamation and provisions from both the Indian Penal Code and the IT Act. India is, in that sense, an outlier. Cambodia is also an outlier. While Cambodia has multiple provisions criminalising speech, the country utilises them to exemplify the consequences of breaking the law. For instance, in the case concerning the assassination of Kem Ley, several individuals were arrested on charges of defamation under the Cambodian Criminal Code for insinuating government ties to the assassination, as will be seen in the Cambodia report. Similarly, Articles 495 and 496 of the Cambodian Criminal Code (incitement to commit a crime and incitement to commit discrimination) have often been used to criminalise Facebook comments. Malaysia focuses on the use of Section 233 of the Communications and Multimedia Act, 1998, to criminalise online speech. As the Malaysia report notes, over 180 cases have been registered in 2016 alone, and “[o]ffences that have surfaced under this law include lèse majesté, alleged fake news, satire, graphics that are perceived as insulting the prime minister, and a wide variety of other ‘affronts’.” In Myanmar, the largest number of cases have been reported under Section 66(d) of the Telecommunications Law. Section 66(d) criminalises the “[e]xtorting, coercing, restraining wrongfully, defaming, disturbing, causing undue influence or threatening to any person by using any Telecommunications Network,” with a jail term of two years, or with a fine, or with both. As the Myanmar report notes, over 90 cases have been registered under Section 66(d) alone, concerning online speech. Pakistan, on the other hand, relies on its blasphemy laws to target online speech and expression. It has acted in a variety of ways, from criminalising blasphemous speech with imprisonment for life, to blocking content considered to be blasphemous under the Prevention of Electronic Crimes Act, 2016.22 For instance, as the Pakistan report notes, a death sentence was once awarded to a man who sent a poem considered blasphemous over WhatsApp. In Thailand, lèse majesté is the provision of choice when targeting online speech. The provision, Section 112 of the Thai Penal Code, criminalises anyone who “defames, insults, or threatens the King, the Queen, the Heir-apparent, or the Regent,” with a punishment of three to 15 years of imprisonment. Most cases in recent years concerned posts and messages on Facebook. 22 Prevention of Electronic Crimes Act, 2016. Section 34. http://www. na.gov.pk/uploads/documents/1470910659_707.pdf 28 / Unshackling Expression