Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Contracts Expression
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Ma Chaw Sandi Htun was sentenced to 6 months in prison by the court of the Maubin Township of the Ayeyarwady Delta Region in Myanmar on December 28, 2015. She posted a satirical photo on Facebook of a military officer wearing women’s garb. She was found guilty of defamation under the broad Section 66(d) of Myanmar’s Telecommunications Law stipulating that extorting, coercing, restraining wrongfully, defaming, disturbing, causing undue influence or threatening any person by using media platforms. She was released from Maubin prison on March 30, 2016 after completing her sentence.
Global FoE could not identify official legal and government records on the case and information on the case was derived from secondary sources. Global FoE notes that media outlets may not provide complete information about this case. Additional information regarding legal matters will be updated as an official source becomes available.
Ma Chaw Sandi Htun, who is also known as Chit Thami, was arrested on October 12, 2015, in the Bahan Township of Yangon, Myanmar, for a post she made on Facebook.
The post in question was a picture in a collage that compared Myanmar’s new army uniforms in mint-green color to Daw Aung San Suu Kyi in a green htamein, which is a traditional skirt. In detail, it was a photo of the Daw Aung San Suu Kyi giving a speech in her green traditional skirt beside another photo of Senior General Min Aung Hlaing, who is the Commander-in-Chief of Defense Services, giving a speech to fellow military members. The caption on the picture read, “Why not wear pieces of her htamein as bandanas if you love her so much?”
After the arrest, it was reported that Chaw Sandi Htun was transferred to the Maubin jail, where she was held for four days. It was reported that Chaw Sandi Htun was initially charged under Section 34(d) of the Electronic Transactions Law, which states that “creating, modifying or alternating of information or distributing of information created, modified or altered by electronic technology to be detrimental to the interest of or to lower the dignity of any organization or any person will be punished with imprisonment for a maximum of 5 years or with fine or both.” Lt. Col. Kyaw Htin, a military officer of the Southwest Command in Ayeyawady’s Pathein District, was reported to be the person who filed a lawsuit against Chaw Sandi Htun. He said that, after seeing the post on October 1, he believed that the post tarnished the reputation of the Tatmadaw, so he decided to report it to both his superiors and the Maubin police station.
On October 27, 2015, Chaw Sandi Htun was brought to the Maubin Court and was interrogated in the courtroom by Lt. Col. Kyaw Htin. The charge was based upon Section 66(d) of Myanmar’s Telecommunications Law, which stipulates that extorting, coercing, restraining wrongfully, defaming, disturbing, causing undue influence or threatening to any person by using any Telecommunications Network is an offense punishable by a maximum of three years imprisonment or fine or both. In addition, Chaw Sandi Htun was charged with defamation under Section 500 of the Burmese (or Myanmar) Penal Code, which says, “[W]hoever defames another shall be punished with a maximum of two years imprisonment, or with fine or both.”
The team of defense lawyers petitioned the court to dismiss the case because an army officer, rather than the commander-in-chief, filed the lawsuit. Nevertheless, the Maubin Township Court upheld the charge on November 24, 2015.
On December 14, the Maubin Township Court in the Ayeyarwady Region dismissed the defamation charge under Section 500 of Myanmar’s Penal Code. The charge under Section 66(d) still remains. However, after the dismissal, Chaw Sandi Htun’s lawyer revealed a new angle on the case, which claimed that Chaw Sandi Htun was not the person who posted the disputed pictures. He said, “[Chaw Sandi Htun] said she never did that. Someone must have intentionally hacked or created a fake Facebook account with her name and then uploaded these pictures.”
It was reported that the judge decided to drop the charge after asking Chaw Sandi Htun to show that there are multiple Facebook accounts under her name, some of which belonged to her, and others of which belonged to others claiming to be her.
When the proceedings concluded on December 28, 2015, the Court sentenced Chaw Sandi Htun to six months in prison for the charge under Section 66(d) of Myanmar’s Telecommunications Law. She was released from Maubin prison in Ayeyarwady region on March 30, 2016 after finishing her sentence.
The Maubin Court sentenced the defendant, Chaw Sandi Htun, to six months in prison. In reaching its decision, the Court reasoned that Chaw Sandi Htun’s Facebook post was an insult to the military and the Senior General Min Aung Hlaing. The Court found that, because the idea of a man wearing women’s clothing on their head or upper parts of the body is deemed to be offensive in the conservative Burmese society, the post in question overstepped the boundaries set out by Section 66(d) of Myanmar’s Telecommunications Law.
According to the defense lawyer, the ruling was based on the evidence provided by the police and telecommunication ministry, even though the defense team complained that the defendant did not post the photo in dispute.
Critics stated that the content specified under Section 66(d) is too broad because there is no clear scope on the use of a telecommunications network to “extort, threaten, obstruct, defame, disturb, inappropriately influence or intimidate.” It was also reported that Chaw Sandi Htun’s arrest could be part of a wider crackdown on social media posts deemed offensive to the military and to the government because military control of government is still one of the most sensitive topics in Myanmar, despite the fact that the country has had a quasi-civilian government since 2011.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case contracts expression because the defendant was found guilty for exercising her right to freedom of expression. The Myanmar law utilized in this case is incongruent with the right to freedom of expression. The government explained that the defendant’s arrest was actuated in order to “protect the honor of someone who has been insulted”, but the position of the government has been criticized for prohibiting criticism of public institutions. As stated in General Comment No. 34 of the UN Human Rights Committee, UN Member States “should not prohibit criticism of institutions, such as the army or the administration” and “the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties.”
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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