Chal­lenge of crim­i­nal­is­ing hate speech

The Myanmar Times - - Front Page - LUCY PUR­DON news­room@mm­times.com Lucy Pur­don is an ad­viser to the Myan­mar Cen­tre for Re­spon­si­ble Busi­ness on ICT and hu­man rights, and a re­search fel­low of the In­sti­tute of Hu­man Rights and Busi­ness.

VIEWS

SINCE Myan­mar’s land­mark elec­tion in Novem­ber 2015, the Na­tional League for Democ­racy gov­ern­ment has pub­licly con­demned the use of so-called hate speech on sev­eral oc­ca­sions and in­di­cated that a new law may be drafted to tackle the prob­lem. The is­sue is par­tic­u­larly ev­i­dent in on­line at­tacks against Mus­lims, women and LGBT peo­ple. While Mus­lims re­ceive most of such at­tacks, women have also re­ceived anony­mous threats for stand­ing up for women’s rights and for LGBT peo­ple tar­geted for abuse.

Since the gov­ern­ment was in­stalled ear­lier this year, the Min­istry of In­for­ma­tion (MOI) web­site has made clear that there is no place for hate speech in Myan­mar so­ci­ety. MOI web­site state­ments have also urged all Myan­mar peo­ple to avoid hate speech and to “live in unity within di­ver­sity”. The Min­istry has called for “re­tribu­tive ac­tion” against those who “make” hate speech.

U Aung Ko, the Min­is­ter of Cul­ture and Re­li­gious Af­fairs, re­cently re­ferred to plans for a new Hate Speech Law – which would crim­i­nalise ver­bal at­tacks on other re­li­gions be­sides Bud­dhism – be­ing de­vel­oped in con­sul­ta­tion with “in­ter­faith groups” com­pris­ing mem­bers of Myan­mar’s var­i­ous re­li­gious com­mu­ni­ties. Such a law, whose pre­cise con­tents are not yet known to the pub­lic, would em­power or­di­nary cit­i­zens to re­port dis­crim­i­na­tory speech.

Ar­ti­cle 364 of Myan­mar’s 2008 con­sti­tu­tion pro­hibits the “abuse of re­li­gion for po­lit­i­cal pur­poses” and “any act which is in­tended or is likely to pro­mote feel­ings of ha­tred, en­mity or dis­cord be­tween racial or re­li­gious com­mu­ni­ties or sects”. It al­lows for the “pro­mul­ga­tion of laws to pun­ish such ac­tiv­ity”.

A for­mer le­gal ad­viser to the NLD, U Ko Ni was re­cently in­ter­viewed by the Demo­cratic Voice of Burma (DVB) and sug­gested that a draft law on hate speech had been cir­cu­lated in 2013 and that the draft­ing process could be re­vived un­der the new gov­ern­ment.

In Septem­ber 2015, the Myan­mar Cen­tre for Re­spon­si­ble Busi­ness pub­lished an ICT Sec­tor Wide Im­pact As­sess­ment (SWIA), which fea­tured an ex­ten­sive anal­y­sis of hate speech in the Myan­mar con­text. An im­por­tant rec­om­men­da­tion made in the SWIA was that clear pub­lic sig­nals should be sent from the high­est level of gov­ern­ment and by all po­lit­i­cal par­ties that hate speech is un­ac­cept­able. That is now hap­pen­ing and is wel­come.

How­ever, leg­is­la­tion needs to be care­fully con­sid­ered. Many other coun­tries strug­gle with leg­is­lat­ing against on­line hate speech be­cause it is not al­ways easy to dis­tin­guish where free­dom of ex­pres­sion ends and le­git­i­mate re­stric­tion on ex­pres­sion be­gins. What is con­sid­ered hate speech in one coun­try may not be con­sid­ered hate speech in an­other; it may be re­gion- or cul­ture-spe­cific, rooted in a coun­try’s his­tory. The lack of an in­ter­na­tion­ally agreed def­i­ni­tion of hate speech has made it dif­fi­cult to clar­ify how such acts should be dealt with, in­clud­ing in the dig­i­tal world.

One state­ment pub­lished on the Min­istry of In­for­ma­tion web­site de­fines hate speech ac­cord­ing to the def­i­ni­tion pub­lished on Wikipedia. While we wel­come the gov­ern­ment’s con­cern about hate speech, we also call on gov­ern­ment of­fi­cials to draft any fu­ture law us­ing in­ter­na­tional hu­man rights law rather than any other def­i­ni­tion.

Free­dom of ex­pres­sion is pro­tected un­der Ar­ti­cle 19 of the Uni­ver­sal Dec­la­ra­tion of Hu­man Rights (UDHR) and Ar­ti­cle 19 of the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights (ICCPR). The right to free­dom of ex­pres­sion and opin­ion ex­tends to ideas deemed un­pop­u­lar, shock­ing, of­fen­sive or dis­turb­ing.

The for­mer UN spe­cial rap­por­teur on the pro­mo­tion and pro­tec­tion of free­dom of opin­ion and ex­pres­sion, Frank La Rue, out­lines this in a 2012 re­port: “The right to free­dom of ex­pres­sion im­plies that it should be pos­si­ble to scru­ti­nize, openly de­bate and crit­i­cize, even harshly and un­rea­son­ably, ideas, opin­ions, be­lief sys­tems and in­sti­tu­tions, in­clud­ing re­li­gious ones, as long as this does not ad­vo­cate ha­tred that in­cites hos­til­ity, dis­crim­i­na­tion or vi­o­lence against an in­di­vid­ual or a group of in­di­vid­u­als.”

This is the na­ture of free­dom of ex­pres­sion: Some­one may ex­press an opin­ion oth­ers dis­agree with, but they none­the­less have a right to say it, ex­cept in cer­tain nar­rowly de­fined cir­cum­stances. When it comes to deter­min­ing what speech should be re­stricted in or­der to pro­tect the rights of oth­ers, in­ter­na­tional hu­man rights law pro­vides a very high thresh­old that must be met be­fore the ex­pres­sion can be le­git­i­mately re­stricted or in some cases pro­hib­ited.

In­ter­na­tional hu­man rights law does not use the term “hate speech”. It has be­come a vague term that of­ten en­com­passes both ex­pres­sion that can be re­stricted un­der in­ter­na­tional law, and le­git­i­mate ex­pres­sion that can­not, even if it is of­fen­sive.

Ar­ti­cle 19, para­graph 3, of the ICCPR out­lines a ba­sis for le­git­i­mate re­stric­tions “as are pro­vided by law and are nec­es­sary … (c) for re­spect of the rights or rep­u­ta­tion of oth­ers; (d) for the pro­tec­tion of na­tional or­der (or­dre pub­lic), or of pub­lic health or mo­rals”.

Ar­ti­cle 20 of the ICCPR elab­o­rates on these re­stric­tion in more depth and pro­hibits by law “any pro­pa­ganda for war” and “any ad­vo­cacy of na­tional, racial or re­li­gious ha­tred that con­sti­tutes in­cite­ment to dis­crim­i­na­tion, hos­til­ity or vi­o­lence”.

In other words, ac­cord­ing to Ar­ti­cle 20 (2), ha­tred, by it­self, would not be sub­ject to re­stric­tion. It is only when ad­vo­cacy of na­tional, racial or re­li­gious ha­tred con­sti­tutes in­cite­ment to dis­crim­i­na­tion, hos­til­ity or vi­o­lence that is pro­hib­ited un­der in­ter­na­tional law.

In­cite­ment is also recog­nised as a crime in other in­ter­na­tional hu­man rights treaties. The UN Con­ven­tion on the Preven­tion and Pun­ish­ment of the Crime of Geno­cide (1948) crim­i­nalises a “di­rect and pub­lic in­cite­ment to com­mit geno­cide”. The In­ter­na­tional Con­ven­tion on Elim­i­na­tion of All Forms of Racial Dis­crim­i­na­tion (1966) re­quires states to crim­i­nalise the dis­sem­i­na­tion of ideas based on racial su­pe­ri­or­ity and as­sist­ing or fi­nanc­ing racist ac­tiv­i­ties.

There­fore the gov­ern­ment should avoid vaguely de­fined terms in any fu­ture law such as “hurt­ing re­li­gious feel­ings”, which could be ap­plied too broadly and does not ad­dress the real dam­age of lan­guage that in­cites, dis­crim­i­nates, and is hos­tile and vi­o­lent, as out­lined in in­ter­na­tional hu­man rights law.

In ad­di­tion to con­sid­er­ing and con­sult­ing widely on ap­pro­pri­ate leg­is­la­tion – which should pro­tect all those who are vul­ner­a­ble to on­line abuse, in­clud­ing women and LGBT – the gov­ern­ment could also sup­port civil so­ci­ety and cor­po­rate ef­forts aimed at what is known as “counter speech”. This is where users chal­lenge “hate speech” by ex­pos­ing false ru­mours, ide­ally with the sup­port of the po­lice, and en­cour­ag­ing peace­ful ex­pres­sion.

While re­search­ing our as­sess­ment, in­ter­vie­wees told the MCRB that there was a lack of guide­lines across pub­lic and pri­vate in­sti­tu­tions on how to use so­cial me­dia ap­pro­pri­ately. Many in­ter­vie­wees also said they did not re­port on­line hate speech to web­site ad­min­is­tra­tors be­cause ei­ther they didn’t know how to or the in­ter­net con­nec­tion was too slow. Own­ers of so­cial me­dia plat­forms should take note of this and ed­u­cate their users on how to re­port abu­sive be­hav­iour on­line, while tak­ing into ac­count pos­si­ble low band­width.

Yan­gon Re­gion Re­li­gious Af­fairs Min­is­ter U Tun Nyunt sug­gested that com­plaints could be made to po­lice sta­tions. How­ever, po­lice will need train­ing and guide­lines on how to deal with com­plaints, and the gov­ern­ment should man­age peo­ple’s ex­pec­ta­tions about pros­e­cu­tions. In 2013, the UK di­rec­tor of pub­lic pros­e­cu­tions is­sued guide­lines for pros­e­cu­tions in­volv­ing so­cial me­dia com­mu­ni­ca­tions to as­sist both the po­lice and pros­e­cu­tors in this new area.

The gov­ern­ment of Myan­mar has the op­por­tu­nity to lead from the front in tack­ling hate speech and to present an ex­am­ple of good prac­tice to the world. But it must tread care­fully by en­sur­ing that any re­stric­tions on speech do not sti­fle free ex­pres­sion and are aligned with in­ter­na­tional hu­man rights law.

One state­ment pub­lished on the Min­istry of In­for­ma­tion web­site de­fines hate speech ac­cord­ing to the def­i­ni­tion pub­lished on Wikipedia. While we wel­come the gov­ern­ment’s con­cern about hate speech, we also call on gov­ern­ment of­fi­cials to draft any fu­ture law us­ing in­ter­na­tional hu­man rights law rather than any other def­i­ni­tion.

Photo: Aung Htay Hlaing

A sup­porter of na­tion­al­ist group Ma Ba Tha speaks in Yan­gon on May 22. The line be­tween free speech and hate speech can be hard to de­fine.

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