Myanmar: A study on the criminalisation of online freedom of expression of speech online, the proposed amendments failed to address the root cause of the law that allows it to be misused for various political reasons. Htaike Htaike Aung Myanmar ICT for Development Organisation www.myanmarido.org Methodology Introduction Today, Myanmar is going through a transition period from a quasi-military government to a civilian democratic government. During this period, freedom of expression has suffered a setback, and Myanmar has failed to meet internationally acceptable standards. PEN Myanmar, in its freedom of expression scorecard, gave the current government a score of 6 out of 80 in its half-year assessment, and 8 out of 60 for its full-year assessment on freedom of expression.1 The abysmally low score was due to the spike in arrests of journalists and activists for their online expression, and the government’s use of laws related to information and communications technologies (ICTs) to curb online free speech. During the previous government’s term, there were only four known cases of criminalisation of freedom of expression online. However, the Telecommunications Law Research Team reports that there have been 73 cases of such criminalisation of online free speech under the present government – from April 2016 to August 2017 alone.2 Out of the 73 cases, 30 were filed by private individuals, 12 by the government, 11 by political parties, nine by supporters of political parties, six by the media and five by the military; more than half of the cases were motivated by political reasons. Although there have been some efforts3 made by the parliament to amend the primary law that has been overly used to oppress freedom 1 2 3 PEN Myanmar is a chapter of PEN International, a worldwide association of writers that promotes literature and freedom of expression. See: PEN Myanmar. (2017, 3 May). Scorecard assessing freedom of expression in Myanmar. https://pen.org/ wp-content/uploads/2017/05/May-2017-Scorecard-English.pdf, accessed Aug 2017. https://www.facebook.com/ ResearchTeamForTelecommunicationsLaw66D Freeman, J. (2017, 25 July). Myanmar moves to amend controversial online defamation law. VOA. https://www.voanews.com/a/ myanmar-moves-to-amend-controversial-online-defamationlaw/3958206.html This report looks at the existing laws and regulations that curtail and criminalise freedom of expression online. The laws are put into different categories: fundamental laws and freedoms, governance and regulations of online spaces, and sectoral laws. The research team is limited by the lack of an accessible system to collect data on court cases and by the non-existence of a freedom of information law. However, a number of high-profile cases are highlighted in this report, gathered from local and international news and media reports, human rights violation documentation groups and existing ICT policy research papers. Although there are only a few laws that had been used to criminalise online speech, we also look at other possible laws and provisions that could be used to curtail online expression. These are laws and provisions that have the potential to be used to curtail freedom of expression online, and we anticipate that they will be used by digital rights advocacy groups in the country in their advocacy efforts. Lay of the legal land Fundamental laws and freedoms Constitution Myanmar’s current constitution is very recent in comparison to those of neighbouring countries since it was drafted in 1994 and enacted in 2008. This is the third constitution adopted after the 1947 constitution, which was a parliamentary democratic constitution, and the 1974 constitution, which was adopted during the socialist democratic government system. The 1974 constitution ended in 1988 with the country’s fall into military dictatorship. In 1993, during the military junta era, the military government (State Peace and Development Council –SPDC) started the drafting process for the new constitution, which took 15 years, until it was adopted in 2008. MYANMAR / 95