The Law Amending the Telecommunication Law, Pyidaungsu Hluttaw Law No – 26, 2017 which amended the 2013 Telecommunications Law, was enacted on 29 August 2017.
The notable features of this Telecommunications Amendment are as follows:
- The name “Ministry of Communications and Information Technology” has now been changed to “Ministry of Transport and Communications;”
- The Telecommunication Amendment also makes changes to the penalties in Section 66 (d) of the Telecommunication Law. This Section refers to acts of extortion, coercion, wrongful restraint, defamation, causing undue influence, among others. The new Amendment now renders these offences punishable by a term of imprisonment not exceeding two years, or a fine not exceeding MMK 1 million, or both. The original penalty provided by the 2013 Law was a maximum term of three years’ imprisonment and an unspecified fine amount.
- Section 66 (d) has also been supplemented with the additional wording “using a telecommunication network to extort, defame, disturb or intimidate”. On the face of it, this would appear to indicate that only prohibited activities conducted via a telecommunications network are punishable under the newly amended Law; and
- A new sub-section has been inserted under Section 80 stating that:
“No action will be taken on a complaint regarding defamation through the use of a network if such a complaint is not made by the aggrieved person or his/her agent”.
The provision introduces the concept of locus standi (the right or capacity to bring an action before the court) in regard to defamation suits or legal proceedings arising under Section 66 (d) of the amended Law. Prior to this amendment, Section 80 merely required that the offence be recognized by the magistrate trying the criminal proceeding, along with a prior approval requirement from the Ministry of Transport and Communications in advance of initiating any criminal action under the Telecommunication Law.
In summary, the Telecommunications Amendment does not appear to have gone far enough in satisfying the expectations of many who had anticipated sweeping changes to the 2013 Law. This is particularly pointed in regard to the granting of bail to those charged for Section 66 (d) offences. It had further been hoped that prior approval would no longer be required from the Ministry when bringing claims before the courts. Unfortunately for now, these hopes appear to have proven somewhat premature.
The information provided in this email is for information purposes only, and is not intended to constitute legal advice. Legal advice should be obtained from qualified legal counsel for all specific situations.
William D. Greenlee, Jr.
Partner; Managing Director, Myanmar