IGF 2016 - Day 3 - Room 4 - WS30 - Strategic Litigation: Freedom of Expression Online - SE Asia


The following are the outputs of the real-time captioning taken during the Eleventh Annual Meeting of the Internet Governance Forum (IGF) in Jalisco, Mexico, from 5 to 9 December 2016. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the event, but should not be treated as an authoritative record. 


>> MARK WALLEM:  Welcome, everyone.  We will get started in just a few minutes.  Come to the table if you want to be more comfortable.  Since we have a relatively small group.  Come on up and let's be cozy.


>> MARK WALLEM:  Very good.  Welcome, everyone on the panel.  Welcome to everyone in the room and watching remotely.  This is on Strategic Litigation in Defense of Freedom of Expression Online in Southeast Asia, jointly sponsored by the American Bar Association Rule of Law Initiative and the Media Legal Defense Initiative.

Both organisations recognise that there is an emerging need to develop, enhance and defend the legal frameworks to ensure a free and open Internet.

These frameworks will have a direct impact on governance and should be oriented towards maximizing freedom of expression online.  Strategic litigation is being employed around the world to defend against online censorship and to advocate for a freer Internet.

There is, however, a lack of lawyers with a specialized expertise required to litigate and defend complex cases involving principles of Internet freedom.  ABA ROLI is pleased to be sponsoring a delegation of lawyers from Southeast Asia to the IGF.  They are presenting on this panel and I will introduce them to you.  On my left, Asep Komarudin, Director of the Legal Aid Centre for the Press.  He has a degree in international law in Jakarta.  He was instrumental in establishment of regional group of the Southeast Lawyers Network and the Advocates for Freedom of Expression Coalition, Southeast Asia or AFEXE.

To my immediate left, Maria Cecilia Soria, from a group which spearheaded the Magna Carta for Internet Freedom in her country.  She log blogs on law and technology at Ceciliasoria.com.

To my far left is L Khun Ring Pan of Myanmar, a founder of his law firm and team leader of the legal affairs team, ex-judges and lawyers and court officers.  They support parliamentary committees with legal research and advice for legal reform in Myanmar.  He was a founding member of the Legal Aid Network, promulgating a legal aid law promoting rule of law and access to justice in Myanmar.

On my immediate right, Preap Kol.  He served as the Regional Coordinator of UNCAC, UN Convention Against Corruption in the Asia-Pacific Region.  He served in the Democratic Institute for International Affairs as well as working for the European Election Commission to Cambodia.

Before I introduce the first speaker I wanted to just give a short roadmap to how we will, how this event will unfold.  We will first, I'll first call on Padraig.  He'll give an international overview of our topic.  Then Asep who will talk about this topic regionally and then turn to Cecilia and Ricky to talk about their respective countries.  And Kol will give a perspective on civil society's engagement and the important role that civil society plays in strategic litigation.

So now I would like to turn to Padraig Hughes, MLDI's legal Director which works locally to defend journalists and bloggers rights.  We are pleased to be sponsoring this panel with that group.

>> PADRAIG HUGHES:  Thanks, Oliver, for inviting me to be on the panel.

One of the ways in which MLDI works is through strategic litigation, which means that we challenge problematic legislation, problematic decisions, hoping that the outcome will have an effect that reaches beyond the particular client and that benefits the wider community.  In the context of digital rights and freedom of expression, for us in broad terms strategic litigation is about challenging states and private actors where they use the law to prevent journalists from reporting on the news and where they prevent community from accessing the news through the Internet. 

We work on three main areas in relation to digital rights.  The first one is issues relating to intermediary liability.  The second one is pushing back on cyber crime laws, and the third one is challenging shut downs.  We see a lot of commonalities in these areas in the regions and the countries in which we work.  We work globally.  In terms of our litigation strategies in relation to certain states in East Africa, for example, we cyber crime laws, the provisions reflected in other states such that when we are litigating strategically in those cases in specific states we do so with an eye on what is happening in other states with a view to taking challenges in other states to deal with the commonalities that exist in that legislation throughout those regions.

And what I would like to do is maybe give you a brief overview of the type of litigation we are engaged in in those three areas.  So in the first area in relation to intermediary liability we have been involved in or are currently involved in a range of cases before the Strasbourg court, the European Court of Human Rights which have a deleterious effect on intermediaries and the way in which they go about their business and the way in which individuals can access information on the Internet.

We were, for example, involved in the case of Delphi versus Estonia, we have been working in the Tamiz versus the U.K. case ongoing before the Court of Human Rights.  At the moment we have a very important case relating to intermediary liability before the European Court of Human Rights which relates to hyperlinking.

I will give you a brief overview of the facts in relation to that case.  It concerns a news portal which published an article containing a hyperlink which brought readers through to a YouTube video which contained allegedly defamatory material related to a well-known person in Hungary.  The incident itself concerned the discrimination and mistreatment of a particular vulnerable group in Hungary.  The comments made by the individual were deemed to be defamatory by the courts in Hungary.  And as well as the person who made the comment, the newspaper was sued on the basis that it disseminated the comments by inserts in the article a hyperlink to allow access to those comments.

This is obviously a hugely problematic decision that has now gone to the Strasbourg court.  We hope it is a measure of the seriousness and urgency with which that court regards the particular outcome in that case, and that they have given it an expedited track, which is quite unusual in an Article ten case.  Normally they reserve that to cases related to the right to life and freedom from torture but they have given it an expedited track.

What has been particularly useful in relation to that case has been the engagement and involvement of other organisations providing amicus briefs to assist the court in understanding the nature of hyperlinking and what is at stake as a consequence of the negative decision coming out of the Hungarian courts.

That as an example of strategic litigation we think is important because it shows a coalition of organisations not just the applicant whom we represent fighting the case alone in Strasbourg but also organisations that profess and have expertise in relation to hyperlinking.

And are able to put before the court -- I think this is very important in relation to strategic litigation on human rights.  You have technical issues sometimes that need to be dealt with by the judges.  The judges are not necessarily the best place to understand those technical issues without some kind of guidance from experts.  And we have managed to put in place, certainly organisations have become involved in that case and provided amicus briefs which essentially explain the nature of hyperlinking and also provide an explanation as to why hyperlinking is essential to the way in which the Internet functions with respect to freedom of expression more generally.

That is an important case and one we hope the court will give us a positive decision on.  We are also litigating cases in East Africa in relation to cybercrime laws.  And there has been a raft of cybercrime laws which have been enacted in certain countries in Africa and around the world which all possess certain commonalities in terms of the provisions and types of harm that they are seeking to deal with.

In Tanzania at the moment we have three cases in court challenging elements, provisions of the Cybercrimes Act.  One of those cases raises serious questions relating to the information that service providers are obliged to give to state authorities in the context of criminal investigations that are taking place in the country.  For example, in a case called Jeme in Tanzania there is a particularly difficult circumstances for online operators who are receiving requests from the police to simply provide them with details relating to users posting content on their sites, their names, IP addresses and so on, such that they can identify them and then instigate investigations in relation to criminal acts that they allege take place but are never set out or explained to the service provider, the operator of the Web site, such that they would feel compelled to provide the state authorities with that information.

It is an interesting system in Tanzania, the way in which cybercrime laws are being used to secure this information.  In the first instance you have the police writing to the Web site operators, insisting that they are entitled to this information.  If they receive a refusal, then they go to court, and only then do they go to court, but that court proceeding takes place ex parte and in camera.  There is no opportunity for the person who owns the information or to whom the information relates or indeed the Web site operator to challenges assertions being made in those hearings.  The threshold that the state authorities have to meet in relation to those hearings is not high.  They simply have to say it is relevant to an investigation as opposed to providing some kind of evidence that it relates to a particular commission or of a particular crime.  That is problematic and one of the provisions that we see being misused by the government in Tanzania in relation to the Cybercrimes Act.  There are others, and other challenges we have brought where we have tried to impress upon the local courts the importance of ensuring that these cybercrime provisions don't impact on the right to freedom of expression.

And the third area where we are working in relation to digital rights, where we are litigating cases is in relation to shutdowns.  Shutdowns is becoming an increasing issue for a range of reasons.  Apparently from the very serious to the quite trivial.  At the moment in Uganda we have an outstanding case.  It is a judicial review of a decision by the state authority dealing with communications to shut down a Web site on two occasions the Internet.  First occasion was during the election.  Second occasion was during the swearing in of the President.  A suit is brought against the Ugandan terrorist.  The state-owned entity complied with an order from a state-owned entity without carrying out any kind of due process and acting unreasonably to concede that that its systems should be shut down, such as individuals were not able to transfer money or do all the normal things that they should be able to do on a day-by-day basis as a consequence of this Internet shut down.

That is a judicial review.  That case is happening at the moment and we are hopeful that the court will take a view in relation to the manner in which the decision was made because that's the essence of the challenge that we are bringing as opposed to challenging it as constitutionally unlawful.

So in broad terms those are some of the cases where we are engaged in relation to digital rights.  But what we are seeing in general terms is we are seeing first of all an increase in our case docket in terms of types of cases that we have to bring.  So we are being asked to become involved more and more in constitutional challenges relating to cybercrime laws, for example.  In relation to shutdowns, challenging decisions in relation to decisions by state agents to shut down the Internet, to flip the kill switch and to take issue in relation to the effects of decisions by the government based on what we say are unlawful decisions to effect the way in which intermediaries conduct their business.

As far as strategic litigation is concerned we are conscious when we are litigating all of these cases that the effects of the decisions in one jurisdiction will hopefully have an impact, certainly will carry some weight in other jurisdictions.  One of the important things that we saw from the intermediary liability case before the European court is the importance of ensuring communication across the world among organisations to understand precisely what is happening in relation to interference with freedom of expression and the Internet in order that we can provide for example information in relation to our cases, the litigation that we are engaged in, to assist other organisations to try to make sure that freedom of expression isn't impacted unlawfully.

>> OLIVER XAVIER REYES:  Thank you, Padraig.  In just a few minutes we will be taking your questions.  We'll hear from two more of our panelists, taking your questions and also looking for questions online.

I want to mention also that our online moderator is my colleague Oliver Reyes, an attorney from the Philippines who works with us on this programme.  And I wanted to acknowledge him.  Okay.  Asep, a regional view, please, of strategic litigation in Southeast Asia.  Thank you.

>> ASEP KOMARUDIN:  Thank you, Mark, for the introduction.  My point about the topic, in the region of Southeast Asia, most of the Southeast Asia country, the law on the standards of human rights regardless of the existing legal framework, the guarantee of the human right.  In some Southeast Asia countries have few human rights for respect.  Some other with the legal framework, the condition is worse.  Violations of freedom of expression, trial, independence of the judiciary, freedom independence are common across southeast Asian countries.  There is no effective witness mechanism available in regional.

In many government in Southeast Asia, they are increasing freedom opponents by using two of their limit the availability of this opportunity.  The methods being used to restrict the Internet freedom and expressions online, including with the national security regulation and investigatory power, harassing, liberal climate also, with restrictions on civilians.  The legitimate concerns about online security have resource in poorly written laws that have been broadly interpreted to strictly legitimate, an atmosphere of fear and self censorship in some Southeast Asia countries.

With the recent regulation and policy development in Southeast Asia countries, we know in Thailand they have the Computer Crime Act has been used and its through the Internet and also in Malaysia recently the amendment of the Computer Crime Act and also in the Philippines Cybercrime Prevention Act also, they are relating to Limiting the Freedom of Expressions Act.

And Southeast Asia, activists and journalists are using the Internet or the cyberspace as a tool of democracy for the democracy movement.  So they try some anti-government critic seeing that will be coming threat for the government.  So they want to try to regulate it and then to control what happened in online with the improper regulations.  The challenges for the lawyer in Southeast Asia, because the law is very absurd, it is becoming hard for the lawyer to defending single cases in their respective country because it is mostly the cases happen in Internet freedom in Southeast Asia countries, not only about the legal or the law manner, but also political cases.  That's why make it difficult to do defending.  It is not only about the enforcing the law but it is also the political issue because a lot of maybe in Cambodia the opposite party member has been jailed because the online defamation also using the Article.

It is the networking of the lawyer, so to helping each other, like the our friend from MLDI is saying that we also in Southeast Asia supporting our friend in the country to, for the single cases is sending the trial officer, or amicus brief or release the prior statement.  So at least the law enforcement agency know they are watching by the group in not only in the country but watching by another group in the region.

Sometimes this is becoming effective for the lawyer defending the cases because we got the attention and to make sure the due process of law is fulfillment in every cases, but again it is not all working because like I mentioned before, it is a political cases, so it is very hard.  Meanwhile in the Southeast Asia we doesn't have regional human rights court.  We had a weak human rights declaration, this is under the standard of the international human rights mechanism that is becoming one of the challenges also.

And the other thing is in Southeast Asia, what we had is more basically about the freedom of expression issue.  It is a bit too far for us in Southeast Asia when we talking about the right to be forgotten, when we are talking about the more technical issue in Internet Governance because so there is only a limited country in Southeast Asia that have the data protection law, that have laws protecting the data of the people of the citizen.  And then because it is the Southeast Asia country, when there is look like some learning each other in government when it is happening in Asia, so another government will copy what then they want to have it also in their country.  Some similar situations.

In Indonesia also we had the regulations that we call it the IT laws since 2008.  The law is already amended just last month.  We had the new amendment law.  There is a few changes in our IT law.  In the past the IT law, we had online defamation, the maximum sanction imprisonment is six years.  Today it is becoming less than six years.  It is becoming four years.  Then some other changes that we had a provision about the right to be forgotten in our IP law, but there is a lot of questioning about the provision of the right to be forgotten in Indonesia because it is not clearly about the what data can be asking to delay and to be forgotten.

And also the one thing is giving the big authority to the government to blocking the Web site without the proper mechanism because the blocking mechanism is not need the court order in Indonesia.  It is only by request, by public officials requested to our Ministry of the information desk.  And then it can be blocking without the proper mechanism.  That is what we are worried about the abuse of the mechanism without the proper blocking Web site itself in Indonesia.

Meanwhile, the rising of the online defamation cases is quite high intensive.  Until now there is ten cases every month regarding the online defamation and then based in some organisation research, the most using the article online defamation reporting is public officials.  70 percent using the article.  And then the most reported are the public or the citizen.  Because they are rating status in Facebook or Twitter or social media platform, because unsatisfied with the public policy or public services in their regions.  And then it is becoming highly intensive in Indonesia.

So with this situation it is very urgent for the lawyers, also for the law enforcement agency now about the minimum international standard of the protection of the Internet freedom.  Then because in some case is in implementation in the law enforcement agency, a lack of understanding about how to handle the Internet or cyber cases.  Because in every cases, they only use the screen shot of the Facebook.  They don't using the digital evidence.  They don't use digital forensics.  So it is also the challenge for us to defending cases in court.

Maybe that is for me and we can discuss it later.  Thank you, Mark.

>> MARK WALLEM:  Thank you, Asep.  So let's turn now to the Philippines.  For several years they were a leader in the region in terms of freedom on the net.  As of last June or July it is under new management by a colorful new leader we all have been hearing about.  Let's check in and see how things are going.  Cecilia?

>> CECILIA SORIA:  Thank you, Mark.  I will be talking about two specific cases of strategic litigation in the Philippines.  One would deal with freedom of expression in general.  One specifically on freedom of expression online.

So my first topic will be as regards the criminal case filed against a local activist for the crime of offending religious feelings.  The case stemmed from a protest that was done by a local activist named Carlos Celdran during debate for the reproductive health bill.  The Catholic Church was the proponent of the bill, as protest Carlos posted a photo in which he wore a black suit and with a placard stating "Damaso."  That is a character, kind of unsavory religious character in a novel by Jose Rizal, the Philippine national hero.  Anyway, the church filed a case against him using the little-known crime of offending religious feelings.  Before the case was filed against Celdran, that provision has only been used once.  I think it was in the '50s.  So nobody actually knew that that provision still existed in the revised Penal Code.

So Celdran's offense centered on the fact that the Penal Code is unconstitutional because it violates freedom of expression.  He was convicted by the lower court and appealed the case to the Court of Appeals, who also offered him the conviction.  It is now on appeal in Supreme Court.

Since Celdran is a popular figure in the Philippines, he has a lot of support in civil society.  The support was mostly shown online.  There were a lot of discussions online about his case, a lot of memes, a lot of shares and posts.

And despite the fact that the Philippines is a predominantly Catholic country, people saw that the provision was actually quite outdated.  In fact, even the solicitor general urged the Supreme Court to strike down the criminal law provision for over breadth, vagueness and being an unconstitutional regulation of free speech.  As I said earlier, the case is still pending in the Supreme Court.

Following his conviction, there were a lot of measures also undertaken to repeal the penal provision, but unfortunately the bills that were filed have also not been passed.

I will turn now to the Cybercrime Prevention Act.  I considered this as the biggest success in recent years in terms of strategic litigation in the Philippines.  So as a background, the Cybercrime Prevention Act or Republic Act Number 10155 was passed into law in 2012.  This took the people by surprise since the passage was done.  We considered it under the radar.  Because at this time the attention of the public was actually centered around the debates on the reproductive health law that was currently pending in Congress.

The Cybercrime Prevention Act was widely criticized for provisions that were seen to curtail freedom of expression.  Among these were content related offenses such as cyber sex, spam, online libel.  The law also empowered the Department of Justice to take down content.  Upon a prima facie finding and even without a court order.

So public opposition to the law gained traction due to the widespread fear of social media users of the online liable provision.  The public feared that acts like liking and sharing Facebook posts, re-tweeting tweets would make them liable as the original authors of the libelous posts.  So 15 petitions were filed with the Supreme Court, including three separate petitions by law makers.  In its decision the Supreme Court ruled the following to be unconstitutional.  The provision penalizing unsolicited commercial communication, collection or recording of traffic data in realtime, and a take-down power of the DOJ without the court order.

The Supreme Court also found to be unconstitutional the provisions stating that a person can be prosecuted for violations of the cybercrime law and the Revised Penal Code for the same criminal act in the case of libel and child pornography.

It was a mixed victory as the Supreme Court however upheld some of the other controversial provisions.  The Supreme Court held that online libel was valid.  However, it clarified that only the original poster would be held libel.  This excluded those who merely liked or shared or re-tweeted the post.

The Supreme Court also upheld the constitutionality of the penalty where crimes involving ICT will be subjected to one degree higher penalty.  So for instance, if there is a violation of the revised Penal Code that is committed with the use of ICT, the penalty that will be imposed is one degree higher than the one actually imposed by the crime in the revised Penal Code.

After the law was on the whole generally upheld by the Supreme Court, the advocates considered the fight to be somewhere else, either in the halls of Congress or in the streets.  Also with the administrative offices, because the next step would be to come up with implementing rules and regulations.  So the advocates wanted to make sure that the implementing rules and regulations would stay within the bounds of the Supreme Court decision.

Some of the efforts that were made was one, the filing of the Magna Carta for Philippine Internet freedom.  What is zipping can't about the Magna Carta, it provides an Internet Bill of Rights for Filipinos.  Unfortunately the bill has not been filed in the current Congress but bits and pieces of it are currently pending.  However, there has been no specific bill that seeks to legislate an Internet Bill of Rights.  We are hoping this aspect of the Magna Carta is filed soon and we would like to encourage our Philippine legislators to do so.

Several bills have also been filed, not only seeking to repeal the online libel provision but to criminalised libel as a whole.  Offline libel.  There has been no significant movement for the bills as well.

So given those two cases, I would also like to touch briefly on the current Philippine context in terms of freedom of expression.  While the Freedom House reports continue to cite a decline in freedom of expression in the Philippines, I think that we are lucky in the Philippines in the sense that the state generally recognizes the freedom of expression of Filipinos.  To date, there has not been an extensive and consistent states sponsored or state initiated curtailment of freedom of expression.  As Mark mentioned we are under new management and we do have a colorful new president.  One cause for concern was the President's recent comment stating that some corrupt journalists who were killed previously, quote-unquote, had it coming.  This was seen by many as than implicit endorsement of the killing or threats against journalists.

In the past year, significantly more so during the election period, we have also seen arise the instances of online harassment and threats.  These usually arise from political posts on social media.  What we have been seeing is that the harassment is usually directed at journalists and women.  Comments do not only consist of abusive posts but actual direct threats of rape and violence.

In May, a female Facebook user decided to file a case against people who sent her abusive private messages on Facebook.  Her case is still pending with the National Bureau of Investigation.  It appears that the investigators are faced with challenges in locating the posters so that cases can be filed against them.

Journalists seem to be critical to the administration, of the administration have also received a lot of threats.  A few weeks ago pictures of local writers, correspondents were shared by the administration supporters with the caption saying:  Irresponsible journalists must be punished.  These cases of harassment appeared to be concerted and coordinated efforts of the administration supporters, leading people to fear that they are actually funded by the administration's allies.

Based on cases that we're seeing there is also a shift from using the judicial system to using social media to curtail freedom of expression.

So I think this is a challenge that would require a different type of strategic litigation for advocates in the legal profession.

That's all.

>> MARK WALLEM:  Okay.  Thank you, Cecilia.  My country will soon be under new and colorful management as well.  So stay tuned for further updates.

Let's stop here and see if we have any questions from the audience.

We have hand-held mics here and mics at the table.

Questions?  Comments?

Let's move on then to Kol.  He is going to give us a civil society perspective.  Kol Preap from Cambodia.

>> PREAP KOL:  Thank you, Mark.  Very good afternoon to all of you.  In fact, it is morning, early morning in my home country in Cambodia.  So I'm glad I'm still awake.  Thank you all for showing up.

So what I am going to talk about is the perspective from civil society regarding the advocacy and also strategic litigation.

First of all, I like to give a general quick, general overview about our context.  Our constitution, and I believe the constitution in many countries, at least many democratic countries around the world currently have freedom of expression.  While people are electively free to use online platforms such as Facebook, Twitter, Instagram and others, we have also seen many people have been prosecuted and imprisoned for expressing opinions online and offline.

For example, in my country we had thousands of activists who have been arrested and put behind bars.  Among these people I would like to note that there are two members of Congressmen, two Members of law makers who also have been arrested and put in jail for posting content on Facebook.

And as I said, in my country there is a constitution that gives the immunity to Members of Parliament.  But the government decided to ignore the immunity and go ahead and arrest Members of Parliament and put them in jail.  So far it has been eight months already.

And the fact that social media has influenced politics in a big way.  As you know, in some cases it drives the crowds for big protests, and even drives a crowd for revolution in some parts of the world.  The government often tends to overreact by taking tough measures and justifies that as necessary to maintain peace, stability, and social order, which we civil society don't see that is a real threat.

Our main role in civil society, we mostly do advocacy.  We are playing a role as advocates.  And our voices are influential and powerful when we have strong support from the general public and endorsed by credible institutions such as the United Nations, foreign embassies and international organisations.

In Cambodia we are fortunately having a widening civil society.  We have more than 4,000 NGOs registered and operating in our small country.  So it is quite a big number.  And the influence of civil society in the country has become the factor that our government has adopted legislations and regulations that weaken our voices.  They have adopted an NGO law, election law, and other laws that restrict our ability to work.  And that has an impact on freedom of expression, freedom of assembly.  That has been over the past few years.

I believe this trend happens in other parts of the world as well.  I don't have to name them.  I think you know that this is getting more and more familiar to many countries.

We have our human rights defenders who were jailed for the past six months for doing legislative work.  Four of them who are women known and who are working very hard for serving the people, they have been put behind bars.

The biggest challenge for our civil society community is that the courts are being used as the arms, legs of the government and are perceived to be among the most corrupt institutions.  As part of the work, because of the court is not independent and it is corrupt, transparency international has implemented programmes in many parts of the world called the Advocacy and Legal Advisory Centre, or ALAC, which provide free legal services to victims of corruption and abuse of power and we use that data that we gather as evidence to help our advocacy efforts and do strategic litigation works.

For example, when we see that many people are afraid to report corruption, we advocate for the government to adopt the whistle blower protection law.  It is being drafted in our country.

Nonetheless, we have also achieved something, although not as big as we wish.  Until 2014, our government had been trying to pass cybercrime laws.  And the draft law never has been circulated for consultation.  But we were able to get a leaked copy and we read the law.  It is very concerning.  So many Articles that is going to cause harm and restrict online content.

Thank you.  In fact, it is not the issue of mine because my voice has been transformed in a different part of the continent.

So until 2014, our government has been trying to pass the cybercrime law, and they never want to share the draft for consultation.  We had our people leak the copy to us, and it is a very concerning.  There's a lot of articles that get us into trouble for expressing our opinion on the Internet.  And they give extra role to the authority to civilians to tap into the content and monitor our online activities.  So that was something that has been discussed two years ago.  Civil society and legal experts and lawyers come together and advocate and make acumen about the issues and the concerns.

As a result they have pushed back and delayed the law, and until now it has not been adopted.  We know that they would like to continue to adopt the law in the future.  We don't know when.

We have a another copy and we are happy to see that some of the concerns that we raised were removed from the second draft that we have seen.

One last success story is that in the past our rim codes used to punish defamation with imprisonment, meaning people can be jailed up to one year for expressing an opinion.  So we thought this is too harsh.  In fact, we wanted to remove the entire defamation.  The government compromised after our advocacy work.  They agreed to remove the punishment of impressment, but still keep the fine there.  So it is between 25 U.S. dollars to 2400.  Still, something there, but at least the imprisonment has been removed.

So that is a small contribution of my note from Cambodia and civil society.  I thank you very much for your attention.  Happy to answer any questions you may have.

>> MARK WALLEM:  Thank you, Kol.  That is, the beating back of that cybercrime law in Cambodia is and was a very significant achievement.  We believe, though, that that is going to be brought back and put forward by the government again.  So the advocates there are remaining vigilant.  For now that's a very significant achievement and we are happy to hear about that.

We are hearing themes here about criminal defamation.  We know that's a significant issue in many of the Southeast Asian countries and of course around the world.  As we focused here on Southeast Asia we know that that is a theme that runs through many of the countries.

And I found interesting Cecilia's discussion about the government-sponsored cyberbullies.  I would be interested after we hear from Ricky to hear from others too if they are experiencing that in their governments, the alleged use or proven use of government-sponsored cyberbullies to threaten and intimidate government criticism.


>> L. KHUN RING PAN:  Thank you very much, Mark, for this opportunity.  Good evening, everyone.  Please allow me to start with a brief background about our country.  As you might already know, Myanmar was governed by a full military realm until 2011.  The main law that has been restricting online expression is promulgated in 2004.  And those laws was the electronic transaction law which can punish online expression for 15 months to seven years.

This is to oppress the opposition during the military regime, one of the most notorious laws of all times in the past history.

When the two years after the new government, the quasi military government came into power, they amended the law by repealing the mandatory jail sentence and substituting with a huge amount of fine.  But we were all happy because there was not any more the mandatory jail sentence anymore and just when we were a little bit relieved about this, then in 2014 a few months after the amendment they promulgated the Telecom Act which criminalised online expression.  For a few months this wasn't used against the online users, but just when the 2015 general election was about to be held, four political activists were prosecuted under this law and put in jail.  So the main purpose of these cases is obviously to create a chilling effect for Facebook users and to take advantage in the coming election.

But in spite of it, the National League for Democracy led by Aung San Suu Kyi has won the election and came into power in 2016, April.  Soon after that Aung San Suu Kyi was appointed a counselor, which is a position second only to the President of the union and became the de facto leader of Myanmar.  So on the outside if you look at it, we have the democracy icon, Aung San Suu Kyi as our leader.  It might create the effect that everything will be moving forward and every issue that we had will be solved in a few years.  But it doesn't happen because according to the constitution, Aung San Suu Kyi doesn't control the three ministries mainly responsible for law enforcement; mainly the Home Ministry, Defense Ministry, and the Border Affairs Ministry.  They are in direct control of the Commander in Chief and appointed by the Commander in Chief.  It means that she has no power to govern the country with the necessary intelligence or information.

So as soon as her government came to power, news about violent crimes such as murder, rape, armed robbery and other types of crimes surfaced in the media.  Of course, the issues became more intense.  The armed conflicts with the ethnic minorities in the border areas became more intense and it is widely suspected that it has been intentionally created to create the effect of instability in the whole country.  Of course, new cases of online defamation were also filed very recently.  This time it is not only about the case for defaming the Commander in Chief, but according to our data we have several cases.  For example, we have 17 cases filed for, between private individuals, six cases for defaming the commander in chief, four for defaming the State Counselor, Aung San Suu Kyi, four against the media, two against the President, two for political parties, two for MPs, one for the military and one for the government.

According to the data we have collected so far, except for the cases between the private individuals, all other cases including cases filed for defaming Aun Sang Su Chi were not in the bill and they are likely to remain in custody throughout the trial, even though the court may find them innocent after the trial.

So in order to stop all these spread of outrageous cases, defending case-by-case is not enough.  We need to formulate an effective strategic litigation to stop all this.  So we had several tools available on the table such as we have the UDHR, which our country has to respect and we have the Human Rights Declaration that the President has personally signed it.  And we have our own constitution that guaranteed freedom of expression as a fundamental citizen right.  And we its have the Section 232 of the constitution which allows private individuals to challenge the constitutionality of these online defamation provisions.  We can challenge the prosecution and the courts, printing out the screen shots of the alleged defamatory Facebook posts and evidence must be presented properly before the courts.  If we do not succeed in the court of first instance we have the option to go and take the matter up to the higher courts.

We have all these legal tools on our side.  But the greatest challenge we have faced at every trial is bail because it is always denied in all these politically motivated cases.  The second part of our criminal procedure code makes it impossible to ask for bail as a right.  It is always discretionary to the judge.  The judiciary is not totally independent because our Chief Justice himself is the ex-military general and is widely known that he or his subordinate are always making orders on how to decide the cases, whether to grant bail or not.

So in order to make effect the tools that I have mentioned earlier, it takes a lot of time.  For example, if we were to challenge the constitutionality of these provisions, it takes several months.  And then we have to consider the fact that our client is in custody T on so even though we have these tools, we cannot use these tools.  So we are stuck with, you know, challenging the court in the first instance and end up with our clients in jail for several months at a minimum.  As far as we know, the minimum jail sentence is six months for all these political activists.

But on the bright side, what we have is, we have the regional network that was mentioned by our colleague Asep.  And during the course of this trial our regional network has issued statements for these cases and they also issued trial lawyers for these cases.  They sent it for the clients.  At one point the U.S. Ambassador, Derek Mitchell, came in person to the court and the German Embassy, the French Embassy, they all sent their officials to observe and support the defendants in the court trials.

So it was, it has created a very positive effect.  It has some kind of influence the prosecution as well.

Because of it, because of these answers by the diplomatic personnel we also had a wide coverage of media, both conventional media as well as Facebook media.

So it still is a loss for our cases.  The good thing that followed, people became aware of their rights, CSOs, NGOs, advocacy groups, unified under the same cause.  And it has become public opinion that we do not want this law anymore.

So the civilian government that came into power with the promise of change is compelled now to revise this law.  Very recently the parliamentary Committee of the legal affairs and special issues Committee announced that the telecom law is on the top list of 488 laws that needs to be repealed or remanded.

Also the bill Committee said that they are preparing a submission which will be filed probably in the next Parliament session to repeal this telecom law.

So the moral of the story of these events is that we should, even though the circumstances and the situation is very hard to fight against or is an uphill fight, we need to keep on fighting and that we need to, we need solidarity to succeed.  And we need to keep on moving even though it is not in the pace we want to achieve.  Thank you very much.


>> MARK WALLEM:  Thank you, Ricky.  The events of the last year in Myanmar have been an inspiration to the world.  As you rightly point out, now governing is a challenge.  It is good to have those updates.  Thank you.

I know we have a comment from our colleague from the Philippines.  Let's hear from Oliver and then we'll open it up to other questions and comments.

>> OLIVER XAVIER REYES:  Hello.  I just wanted to add something about the experience with the anti-cybercrime law, whether it is being litigated with the Supreme Court and perhaps it is also a helpful message when it comes to engaging in strategic litigation because the cybercrime law was challenged before the Supreme Court even before the law was implemented.  So it has just been signed by the President.  It had not yet come into effect but the provisions were already challenged.  It was challenged on the premise that the provisions were so offending fundamental freedoms, particularly freedom of speech that its passage would create a chilling effect on free speech. 

Even before the law came into effect the decision was already made to challenge its constitutionality which has the effect of at least as in the public opinion, striking while the iron is hot.  But it also put the, but it would place the case in a theoretical example rather than pointing out concrete effects on how the application of this law had caused significant harm. 

So I remember consulting with some of the lawyers who did file those cases.  That was the debate because some wanted to wait until the law had actually applied, and then you challenge it before the Supreme Court.  So at least there's something concrete, but by and large people chose to challenge the law even before it was applied.

And what was curious was when the, as was said, when the provisions, especially those which increased the penalties for crimes committed through ICT, those were sustained.  But there were several justices in their concurring opinions who did say that we are actually going to take a wait and see attitude.  We will wait for somebody to be prosecuted under this law and maybe we will change our mind.

Sometimes I think those are the factors that come in.  Strategic litigation its comes hand in hand or takes advantage of public opinion and the opportunities presented by public opinion.  But as you know, there are judicial courts around a different temple than the court of public opinion and sometimes that's something that has to be mitigated or measured.  Thank you.

>> MARK WALLEM:  Anyone else?  Yes, please, our friend from Thailand.

>> Hi, I'm from Thailand.  Listening to all our friends and colleagues from Southeast Asia, we know that the problem we face is more than double.  It is triple, or double layer and many things that we have to fight.  Not only the litigation alone.  Like the problem about the bad law, we have numbers of bad law or Asep used the law.

(Audio cutting out.)

>> -- like the bad laws.  And also when we try to challenge about the deal process, like in Thailand the deal process it doesn't be considered by the judgment.  Basically they are not -- they have some kind of attitude that the officer usually will not try to, how to say, harass or try to do bad things for the defendants for the accused.  This process has hardly been considered. 

I don't know in other countries, but in Thailand I think probably we have some similar situation on that and I agree with the friends from the Philippines.  When we want to fight on this, there are many things that we have to do.  Public opinion, public attitudes, how the case is easier.  The most important is about how can we encourage judicial system or improve the judicial system to understand and exercise the freedom of the people more than happens these days.  We have more -- I know that we work so hard in our regions and we probably need morale lies to work with because just only litigation we can cannot win with a poor understanding, the norm of no respect for the freedoms of the people and the judicial system do not cross to the civil life.  Thank you.

>> MARK WALLEM:  Thank you, and I think you make some very valid points.  As important as strategic litigation can be, there are situations like the severe situation you are undergoing right now where litigation really is not just a real possibility.

And I think that gets back to the point that Asep and Ricky and others were making, the regional support is necessary as well as international support, to the extent that you want and welcome it.  It would be good to talk about that as well, but the regional support that they are trying to build, too, the help from the neighboring countries.  I think that plays a very important role.

Any other questions or comments?  Yes, please.

>> AUDIENCE:  Hi, Jan Weddington from the International Association of Journalists.  We are gravely concerned about the declining situation for press freedom in the region.  We're taking up the need for pressure, international pressure on these cases to make them as high as we can, it has worked in a couple of cases.  In Thailand last year with the Phuketwan case and at the moment we are working hard in East Timor where there's a case happening, a defamation case happening.

And shining the light on governments, so that you've got a case of the Prime Minister there taking the local journalist to court.  It is such a small environment that this is devastating for freedom of expression.  Where we can have journalist organisations working collaboratively in the area, in Southeast Asia we find that has some impact.  Where we can have cross-communication with MLDI and others on these cases, it is really important.

>> AUDIENCE:  Hi.  Not a question but more a reflection.  When you were speaking about how this case is leading to real change and the fact that, for example, you litigate one law, but the law is declared unconstitutional and then a few years later or a few months later you are still litigating, the legislation is already coming with the next version so it doesn't change anything.  Also the fact that you are actually picking up some representative case is of the problem rather than really changing the practice.

I haven't litigated the freedom of expression cases, but I litigated a lot of anti-discrimination cases and my experience with hostile courts and with the hostile regimes to the issue is that actually the representative cases never work.  I think what works is flooding courts with cases.  And that is what we did on discrimination.  So instead of coming one representative case, we just filed 7,000 cases, or 70,000 cases, or across all municipalities.

I think the free speech advocates need to learn from successful movements in other areas and really connect to the social movements and to the people and try finding innovative ways how to do it rather than picking a journalist or someone abused on Twitter.  I encourage everyone to look into it.

I think also one of the most strategic litigation cases I came across recently and nobody knows about it.  It is about digital raise was the hacking case.  I don't know if you heard of the case of Lufthansa, and this can be actually used as a good example is when the anti, how you call it, migrants rights movement tried to lobby commercial carriers not to deport refugees or migrants and Lufthansa and KLM are commercial carriers were carrying these cases and they wouldn't stop.  Then 1400 hackers took down their Web site for a day and staged a lot of activities around it.  They were obviously prosecuted but then the cyber court in Germany said it was a form of protest through the digital platform and the Internet was being used as a space for protest, so the same rights that apply offline apply online.  If you block the government or protest non-front of Lufthansa offices, it was the same as hacking the site.  When talking about strategic cases we really need to look beyond our usual suspects and beyond our practices an connect to these movements.

>> Just in response to that comment, I mean it is quite interesting the way in which legislation that seeks to prevent individuals, for example, from vindicating their freedom of expression, in the same way that legislation was used 15 years ago in relation to the war on terror where it was introduced with a view to allowing states to arbitrarily detain, allowing states to deport, or to engage in activities that would be contrary to human rights norms.

There was strategic litigation and processes arising out of that legislation in relation to the war on terror where in the U.K., for example, you had a number of pieces of legislation that were challenged.  They were challenged.  I wouldn't say the courts were flooded with cases but there were cases which were based on extremely strong facts where they managed to get the Supreme Court, they went to the European Court of Human Rights, managed to get them to say that the legislation was unlawful to the provisions of the convention and was in violation of fundamental human rights and norms.

There is a lesson to be learned from transposing strategic litigation approaches in relation to other violations relating to other human rights areas into the area of freedom of expression.

>> MARK WALLEM:  Okay.  I want to thank our panelists.  I want to thank all of you here and all those watching online.  Thank you very much for attending.


(The session concluded at 1755 CST.)