Freedom of expression is a cornerstone of good governance and democracy. The promotion of free expression requires pluralism, tolerance and broadmindedness. At the same time, it is also recognised that freedom of expression has its limitations.





The exercise of such rights should respect the reputation of others as stipulated in article 19(3) of the International Covenant on Civil and Political Rights (ICCPR). Many public figures, and especially politicians, feel compelled to defend their personal integrity when encountering allegations that they claim to be untrue. Nonetheless, defamation litigation should be avoided, because it inevitably undermines freedom of expression.

Since the enactment of Myanmar’s Telecommunications Laws in 2013, dozens – maybe even hundreds – of citizens have been prosecuted for insulting political leaders and military officials under article 66(d) of the legislation. The broadly worded clause prohibits actions that “extort, threaten, obstruct, defame, disturb, inappropriately influence or intimidate a person by using telecommunication networks”. A maximum sentence of three years’ imprisonment could be imposed on offenders.

In mid-October, several activists who were convicted of defamation under the Telecommunications Law, including Maung Saung Kha, Chaw Sandi Tun, Patrick Kum Ja Lee and Zaw Myo Nyunt, called for amending the law. In response to growing concerns that the legislation was being abused to suppress dissenting opinions, it was reported that the parliamentary Commission for the Assessment of Legal Affairs and Special Issues would consider reviewing the law. Soon after that, on November 9, Yangon Region Chief Minister U Phyo Min Thein filed a lawsuit against Eleven Media Group CEO U Than Htut Aung by invoking the Telecommunications Law.

The controversy was sparked by a commentary by U Than Htut Aung on the National League for Democracy-led government’s performance, on the first anniversary of its historic 2015 general election victory.

In his article, U Than Htut Aung lamented that the NLD-led government had not only “failed to tackle corruption and crony capitalism”, but had also developed close relationships with the cronies. He continued, “On social media, stories have circulated about a newly elected minister, making just US$2,500 a month, being seen wearing a US$100,000 Patek Philippe watch.”

The article went on to imply that the watch may have been gifted to him in a quid pro quo arrangement with a local businessman, and it was this allusion to possible pay-to-play dealings that prompted the Yangon Region head to sue U Than Htut Aung for defamation.





Because the article concerned was published in Daily Eleven on November 6, Eleven Media Group chief editor U Wai Phyo was also sued. On November 11, both men were handcuffed and sent to Insein Prison immediately after responding to a police summons.

While expectations were high that freedom of expression would be better protected under the NLD-led administration, the Telecommunications Law continues to be invoked to punish people who are deemed to have defamed government and military bigwigs. One of the latest victims was a prominent NLD member, U Myo Yan Naung Thein, who was arrested in early November.

To many people’s surprise, cases making their way through the courts include several involving alleged insults to President U Htin Kyaw and State Counsellor Daw Aung San Suu Kyi. In October, a Magwe resident was sentenced to nine months’ imprisonment after calling U Htin Kyaw “crazy” on Facebook.

The practice of punishing people for offensive comments against public figures is disturbing. Given that most of the suspects or offenders of defamation are not opinion leaders, under the principle of “no defamation without injury”, it is questionable whether their offensive words constitute defamation or should be considered slander instead.

Internet in Myanmar still 'not free': watchdog

The lawsuit brought by U Phyo Min Thein is not just another case of defamation. It is particularly alarming because most, if not all, of the previous complaints were lodged by supporters of the public figure concerned. In the case against U Than Htut Aung and U Wai Phyo, however, the Yangon Region chief minister is the plaintiff.

As a public office holder, it is expected that he should be ready to muster a higher level of tolerance for criticism. U Phyo Min Thein has rejected outright the Daily Eleven accusations, and under the current law he has a right to pursue litigation. Yet, is it worth defending himself at the cost of undermining freedom of expression? And is suing the media for defamation the only way to clear his name?

The Human Rights Committee, the treaty body that monitors state parties’ compliance with the ICCPR, points out that defamation laws must be carefully enacted so as to preserve the right to freedom of expression. States should avoid criminalising defamation. Moreover, imprisonment is never an appropriate penalty. Public figures, including government officials, are legitimately subject to public criticism.

The special rapporteur on promotion and protection of the right to freedom of opinion and expression also advocates that governments and public authorities “should not be able to bring actions in defamation or insult”. Countries like the United Kingdom, the United States, India, South Africa and Zimbabwe uphold this principle; public authorities in these countries are not eligible to bring defamation cases.

A necessary element of defamation is that the statement made must be false. It might appear to be reasonable that U Phyo Min Thein insisted that it was U Than Htut Aung’s responsibility to prove that the corruption accusation was valid. The landmark case of New York Times v. Sullivan, however, challenged the notion that the defendant in a defamation case has the duty to prove the truth of the statements when related to government officials. The Supreme Court of the United States ruled that “public officials, in order to sustain an action for defamation, must prove the falsity of the allegedly defamatory statement as well as ‘actual malice’, i.e., that the defendant published a falsehood with knowledge that it was false or with reckless disregard of its truth or falsity”.

This judgment is not legally binding outside the United States, but spells out the principle that public office holders should face a higher threshold when bringing litigation against the media. Furthermore, the heart of the controversy is what U Than Htut Aung said was the basis for the Patek Philippe watch claim: social media gossip or in other words, third-party information.

While it might not be the soundest sourcing, journalism invariably involves reporting information or opinions given by others. In light of this, the European Court of Human Rights ruled in the case of Jersild vs. Denmark that journalists should not be held liable for reporting statements made by others for this “would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so”.

Investigation of the case concerning U Than Htut Aung and U Wai Phyo is ongoing. It is not yet known whether the two media heavyweights will be prosecuted or not. Nevertheless, the legal action taken by U Phyo Min Thein has had a chilling effect on freedom of expression, especially freedom of the press. In the wake of the controversy, Amnesty International, the Foreign Correspondents Club of Myanmar, Asia News Network and other rights organisations have expressed their concerns over press freedom in Myanmar.

The legal action taken by the Yangon Region chief minister inadvertently created a legitimacy crisis for himself since the law – and his decision to wield it in this way – is incompatible with international human rights standards. His litigious impulse may even tarnish the NLD’s image. U Phyo Min Thein should seriously consider withdrawing the case to boost people’s confidence in freedom of expression in a country too long denied this right.

Debby Chan is a PhD candidate in politics at the University of Hong Kong.