In its latest effort to completely obliterate freedom of expression in the country, Myanmar’s junta, the State Administration Council (SAC), has established a committee tasked with cracking down on “fake news”, pornographic material, content incompatible with “traditional Burmese culture” and “political criticism”. The order is in flagrant violation of freedom of expression and human rights standards and adds another tool to the junta’s censorship arsenal. ARTICLE 19 calls on the military authorities to immediately withdraw the Order and dismantle the Committee. Additionally, we urge tech companies operating in Myanmar to take all necessary means to mitigate the severe threats to freedom of expression this Order poses.
The Order No. (246/2023) (the Order) regarding the “Formation of the committee taking action against posting pornographic materials, fake news and criticising politically on the internet” was issued on 15 December 2023. Comprising representatives from various ministries, including the Ministry of Home Affairs, Ministry of Transport and Telecommunications, Ministry of Law Affairs, Ministry of Information, and the Ministry of Home Affairs, the Committee is tasked with, among others:
- Preventing and prohibiting the dissemination of different types of online content, including “fake news”, pornography, and “political criticism”;
- Conducting round-the-clock monitoring, investigation, and legal action against individuals accused of posting content violating the Order “in accordance with existing laws”;
- Collaborating with relevant organisations to deactivate phone numbers, temporarily freeze bank accounts, and halt financial transactions of the accused.
The Order flagrantly violates freedom of expression standards
ARTICLE 19 notes that Myanmar has not signed or ratified the International Covenant on Civil and Political Rights (ICCPR) protecting freedom of expression. Yet, it is still bound by the rights enshrined in the Universal Declaration on Human Rights (UDHR), whose provisions, including freedom of expression, form part of customary international law. The ICCPR should therefore guide the interpretation of guarantees for freedom of expression in the Constitution of Myanmar (Section 354). This means that any restrictions to freedom of expression should comply with the principles of legality, legitimacy, proportionality, and necessity. The Order flagrantly violates these requirements in numerous ways. We will highlight just a few.
First, the legality principle requires that restrictions of the nature contained in the Order should be established through an ordinary legislative process, not an executive order by the junta. The Order also employs overly vague terms like “fake news,” “political criticism,” or “traditional Burmese culture” and states that the Committee will use “relevant laws” as it takes legal action against accused individuals. Those “relevant laws” presumably refer to legislation such as the Telecom Law 2017, the Amended Electronic Transaction Law 2021, and the Penal Code, all of which ARTICLE 19 found to be in violation of freedom of expression standards.
Second, the Order does not pursue a legitimate aim for justifying restrictions on the right to freedom of expression and can be used to ban protected speech. In particular, “fake news” is not a term that is defined under international human rights law and the mere falsity of information is not a legitimate basis for restricting such information. Similarly, content incompatible with “traditional Burmese culture” and “political criticism” are highly subjective and potentially limitless categories. In practice, this will have a chilling effect on the free exercise of expression, as individuals and others will tend to err on the side of self-censorship to avoid criminal sanctions, or even close platforms for communication in order to avoid liability. Additionally, the category of “pornographic content” can be interpreted broadly to target material that is protected under international human rights law, for instance, to discriminate against same-sex interactions, which have historically been targeted under obscenity and pornography laws.
While child sexual abuse material or disinformation constituting hate speech that constitutes incitement to discrimination, hostility or violence may be banned in line with international standards, the broad categories outlined in the Order do not meet these criteria. In summary, banning “fake news”, content deemed incompatible with “traditional Burmese culture”, and “political criticism” will undoubtedly serve as another means to suppress dissent and silence any opposition in the country.
Third, the Order provides for round-the-clock monitoring of “the internet” by a team of technological experts, a completely unnecessary and disproportionate measure that will lead to even more self-censorship, further curtailing free speech in Myanmar.
Fourth, highly intrusive measures such as deactivating the phone number of the accused or freezing their bank accounts can be imposed without any court order and without any clear link between these measures and the speech offences in question.
It is also particularly distressing that the Order provides for “public awareness raising activities” – a euphemism for a campaign intended to spread fear – to ensure that the public knows they may be prosecuted for nothing more than exercising their right to express themselves freely.
ARTICLE 19 therefore urgently calls on the military authorities to immediately withdraw the Order and dismantle the Committee.
Tech companies must take all possible means to protect freedom of expression
Tech companies operating in Myanmar need to adhere to the UN Guiding Principles on Business and Human Rights (UNGPs) and respect human rights, including freedom of expression. Even in situations where the State neglects its obligations, and where domestic laws or orders conflict with international human rights standards, companies should seek ways to minimise the adverse human rights impacts of such measures.
Normally, ARTICLE 19 advises companies facing government demands that contravene human rights to take active measures. These would include demanding clear legal justification for requests and exploring all legal avenues to challenge them, even in countries with a consistently poor record on freedom of expression and rule of law and lacking an independent judiciary. Companies should also be transparent regarding government requests and provide details on the type of content subject to the requests and the action taken in response.
Yet, ARTICLE 19 believes that should Myanmar’s newly formed Committee make requests to tech companies based on the Order or the other “existing laws” referenced in it, requiring legal justification or resorting to the Myanmar judicial system would be futile. We do not take such a position lightly, however, given the country’s abysmal human rights record and the complete lack of any legal system or independent judiciary that could provide a means to challenge any potential government demand, we believe that companies, while taking into account staff security, should refuse to comply with any orders. Otherwise, they will risk being complicit in serious human rights abuses.
We are conscious that ISPs and telcos operating in the country are controlled by the junta and are extremely unlikely to push back in any manner against the SAC demands. As a bare minimum, they should, however, increase transparency towards users about any SAC requests received and steps taken in response.
Three years after the coup, we call for stronger global action
The last three years after Myanmar’s junta seized power through a military coup on 1 February 2021 have been marked by severe violence and human rights atrocities, including possible war crimes and crimes against humanity. According to the ARTICLE 19 Global Expression report 2023, Myanmar ranks a dismal 156th place, indicating a crisis in freedom of expression. In the Freedom on the Net 2023 report Myanmar received a score of 10 out of 100. The international community must apply more pressure on the military to end this intolerable human rights situation. It must also continue to push ICT companies to uphold human rights and do everything in their power to avoid complicity in the ongoing severe human rights violations perpetrated by the junta every day.