A/HRC/42/CRP.5
combat the use of their platforms for the spread and promotion of threats and of hate speech
and for the incitement to violence, hostility and discrimination.1080
467. The Mission has applied the same international human rights legal standards to the
Government’s internet shutdown in 2019 as it applied to hate speech in its 2018 report.
These legal standards ensure that restrictions on the internet that safeguard the right to
freedom of expression also protect the right of people to be free from hatred and violence
by requiring that domestic laws that restrict the internet are formulated with sufficient
precision, are accessible to the public, do not confer unfettered discretion on the authorities
vested with the power to restriction the internet and provide sufficient guidance to
authorities to ascertain what sorts of expression can be properly restricted and what sorts
cannot.1081 Laws that restrict internet access and the implementation of those laws must also
conform to the tests of necessity and proportionality.1082 For a restriction to be proportionate
it must not be overly broad.1083 This means that it must be appropriate to achieve its
necessary function; it must be the least intrusive restriction among those which might
achieve that necessary function; and it must be proportionate to the interest being protected.
1084 The internet must never be restricted to silence advocacy of human rights and of the full
promotion and protection of human rights. 1085 Additionally, any restriction should be
subject to review by an independent court or other adjudicatory body to determine its
consistency with international human rights obligations. 1086
468. Based on these principles, the Mission concludes on reasonable grounds that the
internet shutdown has been based on a law that is incompatible with international human
rights law and that the shutdown has been administered in a disproportionate manner.
469. The Mission acknowledges that the internet shutdown is provided for by Myanmar
law. Article 77 of the Telecommunications Law grants the Ministry of Communications
and Information Technology of the Union Government (Telecommunications Ministry) the
power “not to operate any specific form of communication … and to temporarily control
the Telecommunications Service and Telecommunications Equipments” in the name of
“public interest” when an “emergency situation” arises.1087 However, the law does not
define “emergency situation”, provides no guidance as to who has the authority to declare
an emergency situation and grants the Ministry vague and broad discretionary powers to
shut down the internet with no limitations or, oversight. It is also unclear whether the law’s
chapter on dispute resolutions provides an effective remedy for appealing the shutdown. 1088
For all these reasons, Article 77 of the Telecommunications Law fails to meet the human
rights requirements that must be part of any law that grants Myanmar authorities the power
to place restrictions on the internet.
470. The Mission also assessed the lawfulness of the internet shutdown by considering
how the Government implemented the law and the impact it has had across Myanmar. The
1080
1081
1082
1083
1084
1085
1086
1087
1088
A/HRC/39/CRP.2, para. 1722, and more generally paras. 1718-1726. In follow-up to the findings it
made in 2018 regarding hate speech and incitement, the Mission also maintained a dialogue with
Facebook to discuss curtailing the spread of hate speech and deterring incitement to violence in
Myanmar. See A/HRC/A/42/50, para. 13.
UN Human Rights Committee, General comment No. 34 Article 19: Freedoms of opinion and
expression, CCPR/C/GC/34, 12 September 2011, para. 24-25.
Ibid., para. 22.
Ibid, para. 34.
Ibid, para. 34.
Ibid, para. 23.
UN Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and
Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of
American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission
on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access
to Information, Joint Declaration on Freedom of Expression and responses to conflict situations,
para. 4(a). Available:
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15921&LangID=E.
Telecommunications Law, article 77.
Telecommunications Law, chapter XIV (Dispute Resolution).
131
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