Athens Journal of Law
July 2022
(a) communications, reception, transmission, distribution or conveyance of incorrect
information with dishonesty or participation;" 38
In March 2017, Article 19 undertook a legal analysis of the Law to ascertain
its “compliance with international standards on the right to freedom of
expression”.39 They were critical of the offence of criminal defamation40 because
they are vulnerable to exploitation “where left to government authorities to
enforce”. 41 The provisions of Article 66(d) and Article 68(a) were considered to be
too broad and do “not meet the requirements of legal certainty”. 42 They argue that
Article 40 gives sweeping investigatory powers and, as drafted, to conduct a
search and seize any information, data, paper and documents provided it is from a
place where telecommunication services are provided. 43 Similarly, Article 76 has
similar national defence provisions, national security, and public interest.44
Finally, they argue that Article 77 allows the Ministry “to suspend services,
intercept communications, and to temporarily control services” during an
emergency should be stricken, and service restrictions should be narrowly defined,
require prior judicial approval and only occur in exceptional circumstances. 45
In the light of the Article 19 analysis and an independent review of the Law
by the authors, it is concluded that the law has broad provisions, which are often
poorly defined or even undefined, offences are broad, and search and seizure can
occur without cause. The only condition is that it be in a facility where
telecommunications are provided. In other words, search and seizure can take
place anywhere there is a mobile device, which in these interconnected times is
almost anywhere. As will be seen later in this paper, the Law was an effective tool
used by the Tatmadaw following the coup d’état of February 2021. Even then,
they decided to make it even more draconian. Nine days after the coup, the ruling
State Administrative Council sent a draft of a revised telecommunications bill,
now called a cyber security law, to telecommunications operators for comment.46
The Myanmar Centre for Responsible Business obtained a copy dated 6
February 2021. It was translated, and a legal analysis was sought. 47 The draft, if
implemented, would have severe impacts on the usage of social media.48 Section
29 states:
38
Ibid, art 68
Article 19. (2017). Myanmar: Telecommunications Law, 2013.
40
Telecommunications Law 2013, art 66(d).
41
Article 19. (2017) at 12.
42
Ibid.
43
Ibid, at 13.
44
Ibid, at15.
45
Ibid.
46
Human Rights Watch (2021).
47
Myanmar Centre for Responsible Business. (2021).
48
The review of the draft, and it impacts on social media, is based on the translated sections included
in the analysis published by the Centre and not on the analysis and conclusion of their legal advisor.
The authors have been unable to obtain a translation of the complete draft.
39
313
Electronic copy available at: https://ssrn.com/abstract=4150894