10 December 2020.
For United Nations Human Rights Day 2020, CLD’s Toby Mendel shared a blog post about media freedom in Myanmar at the website of partner International Media Support. The blog is available here and reproduced below.
Standing up for journalists’ rights – a status from Myanmar
Blog by: Toby Mendel
This blog is being published on 10 December 2020, United Nations Human Rights Day. The theme for this year is Recover Better – Stand Up for Human Rights. This is very relevant in Myanmar for a number of reasons. All countries can do a lot to improve on their human rights performance. But Myanmar, which emerged from a long period of one-party and military rule only recently, has a lot to do to ensure strong respect for human rights. Closely related to that, the country held its first recent democratic elections in 2015 followed by another election on 8 November 2020. That election returned Aung San Suu Kyi’s party, the National League for Democracy, to government with an even stronger win than in 2015. Human Rights Day can provide an opportunity for the government to reflect on how it will use its large majority to push forward with human rights reforms.
Since 2012, Myanmar has gone from having a very controlled media environment to one which is much freer. At the beginning of 2012, for example, non-government daily newspapers were banned and private newspapers had to submit their copy to the censor before they could publish it, a true prior censorship regime. There were also essentially only two broadcasters, both closely linked to the government. This has changed and a fairly vibrant and competitive print media environment operates alongside a broadcast sector which is slowly expanding, although it remains remarkably limited compared to other countries in terms of both the number of licensed broadcasters, both radio and television, and the vast dominance of the two crony broadcasters.
What Myanmar has achieved since media reforms started around 2012
In 2012, the main media-specific legislation in Myanmar was the 1962 Printers and Publishers Registration Law. This operated alongside laws of general application – like the Penal Code and the 1923 Official Secrets Act – other sector laws – like the Telecommunications Law 2003 – and a number of official policies and rules to create a highly repressive environment for the media. Content was regulated both criminally via a number of laws and through the system of prior censorship, in addition to through relationships such as the joint venture arrangements between the government broadcaster, Myanmar Radio and Television (MRTV), itself firmly under government control, and the two main private broadcasters.
Three new media laws have been adopted since 2012. The 2014 News Media Law creates an independent oversight body – the Myanmar Press Council – to regulate the news media and generally lightens the degree of control over the media, while still failing in important respects to come up to international standards. The Printing and Publishing Enterprises Law, adopted the same day, establishes a registration regime for the print media and repeals the 1962 law. Like the News Media Law, it is an important improvement over the previous regime while also not coming up to international standards. Finally, the 2015 Broadcasting Law is the most democratic of the three, establishing an independent Broadcast Council to regulate broadcasters and setting largely progressive standards for the sector. Unfortunately, the implementing regulations which are needed to put this law into practice were only adopted in October 2020, after a delay of more than five years, so no new broadcasters have actually been licensed yet under it. On the other hand, a Public Service Media Law, tabled before parliament in 2014, which would have transformed the government-controlled State media into more independent public service media, was withdrawn in 2015 and has never been reintroduced.
A number of policy measures have also been adopted. The prior censorship regime was abolished in August 2012, providing important breathing room for newspapers, while dailies were allowed in early 2013.
The theme at this year’s Human Rights Day is “Recover Better – Stand Up for Human Rights”: How can the media sector in Myanmar contribute to this?
In Myanmar, as in other countries, the media can and to some extent does play a number of important roles. First and foremost among these is informing the public about what is going on in the country and also regionally and internationally. Armed with this information, the public can engage in public decision-making and influence the direction of the recovery. By the same token, the public can participate in any recovery schemes, ensure they are following public health and other advice and take advantage of any rights or benefits to which they are entitled. The media can also, through reporting, expose corruption and wrongdoing, thereby hopefully curbing it. Finally, the media play an important accountability role, making sure that government lives up to its promises and implements programmes and policies in accordance with their proper design.
What obstacles do you see that the media working under to contribute to this recovery?
The media in Myanmar face a number of challenges, again often similar to those faced by media in other countries. The new dailies and the small number of new broadcasters that have been licensed all face major economic sustainability challenges. These have been seriously exacerbated by the COVID-19 pandemic as advertising has declined as other businesses have both been negatively impacted and moved their advertising even more decisively online, in line with the overall social migration to online.
Government secrecy is another challenge. The Official Secrets Act is massively overbroad in terms of secrecy, while a new National Records and Archives Law, adopted in December 2019, exacerbates problems of secrecy. At the same time, despite having released a draft Right to Information Law, giving individuals the right to access information held by government, in February 2016, the government has not moved forward concretely to adopt this law. The government also tends to favour the still significantly government-controlled State media in terms of the provision of information. These media have also been privileged during the pandemic shutdowns, since their journalists were the only ones deemed to be essential workers and allowed to move about to collect news.
Finally, a wide array of mostly criminal prohibitions on what may be disseminated through the media – found in a number of laws, including the Penal Code – place major constraints on media freedom. These include criminal defamation rules as well as a large number of prohibitions on the digital dissemination of information. The problem of these provisions is far from theoretical, with criminal cases against journalists under them being filed regularly.
Mis- and disinformation and hate speech continues to be widespread and serious issues in Myanmar, including by enabling human right violations: Does the legal framework need to be amended to address this and, if so, how?
Mis- and disinformation is a very serious problem in Myanmar and it has even been promoted in some cases by official actors to achieve political ends. As a first measure in this area, participation by official actors in spreading disinformation must stop. In addition, Myanmar has a number of vague legal prohibitions on spreading “false” information, such as section 68 of the Telecommunications Law which prohibits the dissemination of “inaccurate information”, which have been abused to silence critical journalists and social media users. These should be replaced by narrowly tailored provisions on spreading false information with specific intent, such as fraud, undermining elections or preventing people from obtaining heath care services.
The new government will be installed in April 2020: What are your hopes for action by the government in the areas of media freedom and freedom of expression?
As this blog makes clear, the new government has a lot to do. Some of the key priorities should be:
- Adopting and implementing a strong right to information law. This should be accompanied by a thorough revision of the Official Secrets Act so as to bring it into line with international standards in this area.
- Appointing an independent Broadcast Council and allocating it with sufficient resources to get on with its work of licensing and regulating broadcasters.
- Reviewing and revising the numerous content restrictions in various pieces of Myanmar legislation. In the meantime, refraining from bringing cases against journalists under these rules.
- Adopting legislation transforming the government media into independent public service media.
Biography: Toby Mendel is a leading global expert on media and freedom of expression law who has worked on these issues for some 25 years. He is currently the Executive Director of the Centre for Law and Democracy (CLD), an international human rights NGO based in Canada which focuses on foundational rights for democracy. He has worked on media freedom issues in Myanmar since CLD was founded in 2010 and has worked intensively in the country on media law reform since this started to be considered seriously in 2012. CLD is a long-time partner to IMS.
“IMS-Fojo in Myanmar is working on the country programme “Paving the way for public interest journalism in Myanmar” 2020-2022”.