Commercial Speech, Content Regulation / Censorship
BestWater International GmBH v. Mebes
Closed Contracts Expression
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The owner of a printing house and four of his associates were prosecuted for printing a calendar that mentioned “Rohingya”, the name of an ethnic minority in Myanmar, and charged with causing fear or alarm to the public. On trial, the owner was acquitted but his associates were sentenced to one year in prison.
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It has been reported that U Kyaw Kyaw Wai, the owner of the Kyaw Printing House in Yangon, and four of his associates, Ye Thu Aung, Win Naing, Zaw Min Oo, and Win Htwe, have been prosecuted for the publication of a calendar.
The calendar contained quotes from speeches of U Nu, the first Prime Minister of Myanmar, and other prominent figures from Myanmar’s early independence period describing the Rohingya, a Muslim minority group in Myanmar, as a distinct ethnic group. The calendar also contained a quote from a 1946 speech by Bogyoke Aung San, the father of Aung San Suu Kyi, in which he invites Muslims to live in peace with the Buddhist majority.
They were initially prosecuted under the country’s Printing and Publishing Law, and subsequently under the Criminal Code. The calendar had been reported to the authorities by members of the Ma Ba Tha, a group of Buddhist-extremists in Myanmar who aim to protect “race and religion.” Over 700 copies of the calendar had been published, and a warrant has been issued for the arrest of the person who had ordered the calendars.
On November 23, 2015, the Pazundaung Township Court in Yangon fined each of the defendants 1 million kyat ($770) under Myanmar’s Printing and Publishing Law.
Immediately after, the five were arrested and charged under Article 505 (b) of Myanmar’s Criminal Code. On June 14, 2016, they were sentenced to one year in prison for publishing a statement deemed to “cause fear or alarm to the public”. It was reported that U Kyaw Kyaw Wai was released as he was not liable to legal action under Article 505 (b). At the time the ruling was handed down, police had not been able to find the person who had ordered the calendar.
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Article 505 (b) of the Criminal Code, under which the publishers were convicted, states that “[w]hoever makes, publishes or circulates any statement, rumor or report with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility shall be punished with imprisonment which may extend to two years, or with fine, or with both.” This provision has often been used to prosecute individuals for exercising their freedom of expression as its vague wording is interpreted to restrict all sorts of statements that do not incite violence. This contradicts international human rights law, under which no individual should be convicted of public order offences such as provided under Article 505 unless there is a real likelihood that what they published or said will result in actual violence or discrimination.
The judgment sanctions individuals for the mere reprinting of quotes from statesmen from a previous era mentioning the term “Rohingya”, an ethnic group in Myanmar. Discussion of the situation of the Rohingya is a sensitive subject in Myanmar, and extremist Buddhist groups such as Ma Ba Tha have staged repeated protests against them, saying they are illegal immigrants from Bangladesh. The Rohingya face serious human rights violations such as denial of citizenship, forced labor and sexual attacks, leaving them vulnerable to trafficking as thousands of them seek to leave the country every year. The United Nations states that the pattern of violations against the Rohingya may constitute a “crime against humanity.”
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