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Dictating the Internet Dictating the Internet: Curtailing Free Expression, Opinion and Information Online in Southeast Asia Curtailing Free Expression, Opinion Dictating the Internet: and Information Online in Southeast Asia Composed of 60 eminent judges and lawyers from all regions of the world, the International Commission of Jurists (ICJ) promotes and protects human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems. Established in 1952 and active on the five continents, the ICJ aims to ensure the progressive development and effective implementation of international human rights and international humanitarian law; secure the realization of civil, cultural, economic, political and social rights; safeguard the separation of powers; and guarantee the independence of the judiciary and legal profession. ® Dictating the Internet: Curtailing free expression, opinion and information online in Southeast Asia © Copyright International Commission of Jurists Published in December 2019 The International Commission of Jurists (ICJ) permits free reproduction of extracts from any of its publications provided that due acknowledgment is given and a copy of the publication carrying the extract is sent to their headquarters at the following address: International Commission of Jurists P.O. Box 91 Rue des Bains 33 Geneva Switzerland Dictating the Internet: Curtailing Free Expression, Opinion and Information Online in Southeast Asia This report was researched and drafted by Dhevy Sivaprakasam. Legal review and direction were provided by Frederick Rawski and Ian Seiderman. Sanhawan Srisod, Sean Bain, Michelle Yesudas, Jenny Domino and Ruth Stephani Panjaitan also provided input that informed this report. The cartoons included in this report were drawn by Zunar. The ICJ would like to acknowledge the following organizations, whose information and analyses were referenced in this report: Access Now Advocates’ Association of Sarawak Amnesty International Article 19 Asia Internet Coalition Association for Progressive Communications Athan Myanmar BSA The Software Alliance Cambodian Center for Human Rights Cambodian League for the Promotion and Defense of Human Rights (LICADHO) Cross-Cultural Foundation Defend the Defenders Free Expression Myanmar Frontline Defenders Human Rights Foundation Center for Law and Democracy Human Rights Watch iLaw International Federation for Human Rights (FIDH) Lao Movement for Human Rights Lawyers for Liberty Malaysian Bar Association Manushya Foundation Political Prisoners in Thailand Reporters Sans Frontières Sabah Law Association Southeast Asian Press Alliance Thai Lawyers for Human Rights Thai Netizen Network The 88 Project The Brunei Project And all other partners – individuals and organizations – who provided input that informed this report. 2 Dictating the Internet: TABLE OF CONTENTS Executive Summary ...................................................................... 5 I. Background ........................................................................... 8 II. International law and standards ......................................... 15 i. The right to freedom of expression, opinion and information ..17 ii. Potential limitations on right to freedom of expression and opinion ...........................................................................19 iii. Obligations to protect that may restrict expression and opinion ...........................................................................21 iv. The right to effective remedy ............................................22 v. Protection of rights to freedom of expression, opinion and information online ...........................................................23 vi. The right to privacy..........................................................27 vii. Extraterritoriality .............................................................30 viii. The rights to peaceful assembly, freedom of association, and political participation ........................................................31 ix. International standards and commentary pertaining to internet restrictions and shutdowns ...................................34 x. Other efforts to develop international normative standards governing cyberspace ......................................................36 III. Employing legal frameworks which serve to abusively restrict freedom of expression, opinion and information online ..... 39 (a) Existing legal frameworks ................................................43 i. Laws which aim to protect the reputation of legal persons .....43 Philippines ................................................................44 Myanmar .................................................................45 Thailand ...................................................................50 Indonesia .................................................................56 Singapore ................................................................58 Curtailing Free Expression, Opinion and Information Online in Southeast Asia 3 ii. Laws which aim to protect the reputation of the monarchy ...61 Thailand ...................................................................62 Cambodia ................................................................70 Malaysia...................................................................72 iii. Laws on sedition .............................................................75 Malaysia...................................................................77 Brunei Darussalam ....................................................80 Philippines ................................................................82 iv. Laws which aim to protect the security of the nation or public order ....................................................................85 Lao People’s Democratic Republic (Lao PDR) .................86 Vietnam ...................................................................88 Myanmar ..................................................................94 v. Laws which aim to protect the courts .................................96 Singapore ................................................................97 Malaysia................................................................. 100 Thailand ................................................................. 102 (b) Emerging legal frameworks ............................................ 106 vi. Laws which aim to regulate information online ................... 106 Malaysia................................................................. 107 Philippines .............................................................. 111 Cambodia ............................................................... 114 vii. Laws which aim to control spread of “disinformation” online 116 Malaysia................................................................. 116 Singapore .............................................................. 119 Philippines .............................................................. 123 Lao PDR ................................................................. 125 4 Dictating the Internet: viii. Laws which aim to protect cybersecurity ........................... 126 Vietnam ................................................................ 127 Thailand ................................................................. 132 Cambodia ............................................................... 136 ix. Laws abused to justify internet shutdowns ........................ 138 Myanmar ............................................................... 139 Philippines, Vietnam and Indonesia ............................ 141 IV. Patterns of abuse .............................................................. 144 i. “National security” and “public order” ............................... 144 ii. Vague, overbroad provisions ........................................... 146 iii. Severe penalties ............................................................ 147 iv. Lack of independent oversight mechanisms ....................... 149 v. Failure to provide effective remedy or accountability .......... 150 vi. Application beyond frontiers ............................................ 152 V. Moving forward ................................................................. 156 VI. Conclusion ........................................................................ 159 VII. Annex .............................................................................. 162 Laws, regulations and bills referenced in this report included ....162 Cases referenced in this report involved the following individuals .................................................................................. 164 Curtailing Free Expression, Opinion and Information Online in Southeast Asia 5 Executive Summary The internet is the world’s most powerful medium of communication. For most of the world’s population, it is a significant means of exercising the rights to freedom of expression, opinion and information, and for participating in public life. The internet can, however, serve as a double-edged sword. People now enjoy unprecedented access to information. At the same time, the spread of hate speech, incitement to violence, disinformation or propaganda and risks of cyber-attacks on State and other organizational infrastructure pose threats not only to the exercise of the rights to freedom of expression, opinion and information, but also to privacy, religious freedom and belief, and public participation, among other rights.
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