Contextualising Cyber Laws in East and Southeast Asia: An Added Concern for Online Civic Space
An excerpt from FORUM-ASIA’s Working Paper Series 5: Civic Space: Challenges and Ways Forward
In countries where an atmosphere of repression is already prevalent, authoritarian governments further suppress freedoms by complementing cyber laws with existing repressive legislation that hinder freedom of expression offline. Citing the proliferation of fake news and national security concerns has proven to be a fashionable way to expand restrictions on freedom of expression in the cyberspace. This belies a grave misunderstanding of current threats found in the Internet that leads to the enforcement of ineffective legislation and disproportionate sanctions. As a result, cyber laws further propagate a culture of self-censorship, exacerbating the rising trend of digital authoritarianism in East and Southeast Asia. 23
Added Repression, New Justifications
Myriad laws restricting the “traditional” practice of freedom of expression in Southeast and East Asia exist under the guise of preserving national interests, national security, or protecting a nation’s moral or religious beliefs.24 Cambodia’s Press Law targets journalists publishing information deemed to compromise national security; Indonesia’s Broadcast Act limits broadcast content; Timor Leste’s Media Law prohibits content that may impinge on the right to honour and reputation; Singapore’s Undesirable Publications Act enables authorities to ban publication deemed “obscene”.25 While majority of East and Southeast Asian countries’ respective Constitutions guarantee freedom of expression, this is often circumvented by provisions found in other laws – usually embedded in Criminal Codes – in the form of extremely broad provisions touching on defamation, incitement, criticism of government organs, and religious expression.
These “offline” laws infringing on traditional media of expression prove insufficient for authoritarian regimes striving to keep their grip on power, especially with the power of the Internet. Its borderless nature has facilitated a freeway of ideas; it now serves as a primary source of information, a means of conducting business, and a way to communicate with others.26 However, with the expansion of cyberspace has come the escalation of cybercrime.27 While these cyberlaws are justified by States as a means of responding to an alarming increase of cybercrimes,28 oppressive governments misuse the fake news–national security trend as justification to extend “traditional” repressive laws into the cyber realm, effectively curbing freedom of expression. Where it should promote a safe space for Internet users for any kind of expression, it has done the opposite by repressing views and opinions crucial for a vibrant and progressive civil society.
This is the all-familiar scenario one finds in ASEAN countries: Cambodia’s Cybercrime Law explicitly prohibits books and any other content deemed to create national insecurity, be it online or offline. Laos’ Decree on Information Management on the Internet 2014 prohibits online content convincing people to attack the state or the government, or impinges on the peace, independence, sovereignty, democracy, or prosperity of the country.29 In Myanmar, the Electronic Transactions Law prohibits using electronic technology that may endanger state security, law and order, community peace and tranquillity, national solidarity, the national economy or national culture.30 Meanwhile in East Asia, China takes on an interesting stance in its Cybersecurity Law as it extends the notion of sovereignty in cyberspace, often dubbed as “cyber sovereignty”. China’s communist ideals are “protected” in cyberspace from any foreign influence by this law.31 Mirroring China’s Cybersecurity Law, “distorting national history” is a basis for crime in Vietnam’s new Cyber Security law, adding to the already repressive atmosphere promulgated by Decree 72.32 Moreover, in Thailand, the National Council for Peace and Order’s (NCPO) announcement No.97/2014 (amended by announcement No. 103/2014) punishes individuals disseminating information that could lead to social divisions and panic among the public.33 The Announcement has been used as a ground to suspend the outspoken TV digital channels. This order further consolidates vague and arbitrary provisions found in the controversial Computer Crimes Act of Thailand (CCA). Similar reasoning for such laws can be found in Indonesia’s Electronic Information and Transactions,34 Singapore’s Computer Misuse and Cybersecurity Act, and The Philippines’ Cybercrime Prevention Act of 2012.35
Emblematic Case: Thailand’s Lèse-Majesté
In countries like Thailand, consequences can be dire should one “criticise” the royal family. On December 2015, Thanakorn Siripaiboon was charged on several counts – sedition, charges under the Computer Crime Act, and lèse majesté – for having shared “seditious” infographic content about a military corruption controversy, for making a “sarcastic” remark about King Bhumibol Adulyadej’s favourite pet dog, and for clicking “Like” on a doctored photo of the King.36 Thanakorn was denied bail twice by the Bangkok Military Court before his bail was granted on March 2016 with the condition of barring him from leaving the country. As of August 2018, the trial is still on-going against Thanakorn. He could face up to a maximum of 37 years of imprisonment should he be found guilty of all charges.37 His case highlights how the right to freedom of expression is curtailed when it concerns both monarchy and military rulers.38
Ineffective Legislation and Disproportionate Sanctions
Extremely broad, overly vague, and arbitrary provisions plague most cyberlaws in the region, leading to an overall ineffective legislation. Indonesia’s revised Law on Electronic Information and Transactions Law (ITE), for instance, attempts to define cyberbullying as constituting threats of violence or frightening information, and acts causing physical, mental and/or financial damages.39 This definition remains contested, as there is no standard definition of cyberbullying, nor of bullying in other legal instruments. This may lead to multiple interpretations, becoming a “multipurpose Act” to suit any situation.40 As demonstrated in the early-mentioned case, Thailand’s lèse-majesté clause has been interpreted broadly over the recent years. The United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression stated in 2011 that Thailand’s lèse-majesté laws were “vague and overly broad, and the harsh criminal sanctions are neither necessary nor proportionate to protect the monarchy or national security”.41 Overly broad provisions found in Vietnam’s draft Cyber Security Law also enables abuse, as authorities are able to decide when expression should be deemed “illegal”.42 Furthermore, in Thailand, there are recent legislative proposals to introduce a Cyber Security Bill. If promulgated, it would allow authorities to access and seize computers or any equipment that are privy to cyber security threats, without a court order.43
Invasive Monitoring and Surveillance
The very existence of a cyber monitoring and surveillance programme “follows that any capture of communications data is potentially an interference with privacy; the collection and retention of communications data amounts to an interference with privacy whether or not those data are subsequently consulted or used”.44 Using surveillance programmes, repressive governments routinely target activists and infect their computers and phones with malicious spyware that leads to the silencing of civil society and effectively cracking down on legitimate human rights work.45 Invasive cyber monitoring and surveillance are often administered by powerful and influential committees. Cyber monitoring in China is controlled by the Cyberspace Administration of China (CAC), now a commission from its former status as “leading group”. The commission is nominally headed by Xi Jinping himself, but entrusts key functions to trusted members of the politburo. This leading group is in charge of issuing notices and directives if websites are found noncompliant to censorship rules. A censorship directive may touch on any topic. After a campaign to arrest almost 200 lawyers and activists in China, the CAC published a censorship directive saying, "All websites must, without exception, use as the standard official and authoritative media reports with regards to the detention of trouble-making lawyers by the relevant departments”.46 Neighbouring countries have followed China’s censorship committee model. Cambodia’s Cybercrime Law authorises a “telecommunications inspections officials” to monitor any mode of communication on the approval of “legitimate authority”. This “authority” is undefined, in practice implying that the government may intrude on any mode of communication without a warrant.47 The Korea Communications Standards Commission (KCSC) government body has similar functions, with the ability to monitor private content in social networks and mobile applications.48 In Thailand, NCPO Orders 12/2014 and 17/2014 require all social media and Internet service providers to work with, and report content that violates these terms to the National Broadcasting and Telecommunications Commission (NBTC).
East Asian governments often extend defamation clauses coupled with disproportionate penalties existing in criminal law to cyberspace. This is the case for the Philippines’ Cybercrime Prevention Act, which prescribes up to 12 years of imprisonment for anyone found guilty on online defamation grounds. Criminalisation for defamation in South Korea mirrors this kind of legislation, but with significantly higher fines when defamation is done online. In Indonesia, Article 27 of Indonesia’s ITE Law criminalises anyone who distributes electronic information that contains threatening content, or information that incites violence. Individuals accused under defamation under ITE Law can be detained for 50 days without trial, be imprisoned for up to four years, or fined up to Rupiah 1,000,000,000 (US$70,000).49 The Philippines’ Cybercrime Prevention Act penalises anyone who commits defamation online; penalties exceed those prescribed by Article 355 of the Penal Code, meaning that penalties can reach up to 12 years of imprisonment.50 Similar provisions can be found in Thailand’s CCA and Singapore's Computer Misuse and Cybersecurity Act.
Emblematic Case: Crackdown on dissent in Laos
In March 2016, Somphone Phimmasone, Lodkham Thammavong, and Soukan Chaithad were arrested for Facebook posts criticising the Lao Government for its human rights violations, corruption, and environmental policy.51 The three repeatedly criticised the government while they were working in Thailand. They were also amongst the 30 people who protested in front of the Lao embassy in Bangkok.52
Months later, after a report assumed that the three were victims of enforced disappearance,53 they appeared on state television, apologising for allegedly endangering national security. "From now on I will behave well, change my attitude and stop all activities that betray the nation," said Somphone Phimmasone.54 Laos, one of the last single-party communist state in the world, controls media and Internet tightly. At the time of writing, Laos ranks 170th out of 180 countries for press freedom.55
- Quote paper
- Dominique Calanas (Author), 2018, Contextualising Cyber Laws in East and Southeast Asia, Munich, GRIN Verlag, https://www.grin.com/document/498548