Myanmar: Telecommunications Law
09 Mar 2017
In March 2017, ARTICLE 19 analysed the Telecommunications Law 2013 (the Law) in the Republic of the Union of Myanmar for its compliance with international freedom of expression standards. The analysis not only highlights concerns and conflicts with international human rights standards within the Law, but also actively seeks to offer constructive recommendations on how the Law can be improved.
We note that some aspects of the Law are positive, such as its promotion of media pluralism through outside competition in Myanmar. However, the Law contains onerous provisions which have been used to severely limit freedom of expression and freedom of the media. These include Article 66(d), which provides criminal penalties for insults and defamation online, as well as Articles 40, 76, and 77 which provide powers of warrantless entry and emergency interception under broad circumstances not subject to prior judicial review. The consequence is that courts or other independent authorities are prevented from reviewing surveillance of, or access to, subscriber information and communications.
The Law also uses many key operative terms that are not defined, including ‘national security,’ ‘emergency situation,’ and ‘public interest'. The Posts and Telecommunications Department – which allocates telecommunications licenses - is tasked with enforcement yet it is subordinate to the Union Government and hence not sufficiently independent of the executive. Licensing requirements are not defined in law and the procedures as to their allocation or revocation are not transparent. Finally, the Law introduces criminal sanctions in the form of imprisonment where fines or administrative sanctions would suffice to enforce technical and regulatory violations.
The Law fails in these - and other respects - to sufficiently safeguard fundamental rights including the rights to freedom of expression as well as freedom of information and privacy.
Telecommunications are currently a central issue in Myanmar, which has seen unprecedented expansion in this sector. However, we believe that it is vital that Myanmar’s efforts to regulate these issues are consistent with its obligations to protect and promote freedom of expression under international law.
We also note the necessity for Myanmar to bring its other instruments, including but not limited to its 2008 Constitution and 2004 Electronic Transactions Law, in line with international freedom of expression standards.
ARTICLE 19 urges the Myanmar Government to address the shortcomings identified in the analysis and bring the Law into full compatibility with international standards of freedom of expression. We stand ready to provide further assistance in this process.
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