Burma’s Ministry of Information (MOI) served a judicial summons to the Myanmar Herald Journal on 5 November notifying the weekly that it has been charged with defamation.
The indictment is based on alleged statements made by a prominent National League for Democracy (NLD) leader during an interview published by the Herald on 9 August.
Published in the Herald’s “Politics Q&A” section, NLD Executive Committee member Myo Yan Naung Thein made comments that the MOI claims “hurt the dignity and rights of the state leader [President Thein Sein].”
Aung Tun Lin, the Herald’s managing editor, said that 11 staff members were served a summons to face charges under Article 25(b) of the Media Law on account of Myo Yan Naung Thein’s statement in which he slammed Thein Sein of spouting “gibberish, irrational, cheap and inconsistent” words that were all “completely nonsensical, absurd and insane”.
In a telephone interview with DVB, Aung Tun Linn said, “Those who are facing charges include various staff members ranging from chief editor to the distribution staff. Usually legal actions [against publications] are directed at editors, and so we have no idea why the MOI is also targeting the distribution staff,” said Aung Tun Linn, adding that the publication’s office manager is also among those facing charges.
Article 25(b) of the Media Law provides that “Any News Media worker who is determined to be guilty of transgressing [certain news worker] ethnical responsibilities … will be fined no less than 300,000 kyat and no more than 1,000,000 kyat.”
The ethical responsibility allegedly violated by the accused Herald staff is contained in Article 9(g)(second clause) of the Media Law, which says that news workers must refrain from writing news that “deliberately affects the reputation of a specific person or an organisation.”
The day before Herald workers receive their judicial summons, MOI announced in a state-owned newspaper that it was planning to sue the Herald for defamation not only for publishing Myo Yan Naung Thein’s initial statement about President Thein Sein’s “insane” comments, but also for another statement by the NLD member—published in the same article—in which Myo Yan Naung Thein said it was “totally unclear who imparted such ludicrous ideas to the President [that would lead Thein Sein to adopt such] poor policies and lead the government.”
The MOI’s state-owned media announcement said it had asked Burma’s Press Council to instruct the Herald to provide an explanation for “the irresponsible expressions [it published] in accordance with press ethnics,” after which the Press Council made a “suggestion” to the news journal that it publicly apologise for publishing “accusations that jeopardised the image of the President”.
While the Press Council was attempting to mediate the dispute, the Herald apparently gave the council a draft apology letter that it was planning to publish. However, after obtaining a copy of the letter, the Information Ministry decided to sue the Herald for defamation because its apology was not only insufficient, but also “further criticised other dignitaries,” according to the MOI announcement.
Shortly after MOI announced its intention to sue the Herald several questions were raised by the Press Council and others about the case.
In a phone interview with DVB, Press Council member Zaw Thet Htwe described MOI’s response when asked whether it has standing to sue media workers on behalf of President Thein Sein.
“When asked whether they can sue on behalf of the president or the president’s office, MOI said it can sue the Herald in its capacity as an institution which represents the government,” he said.
Zaw Thet Htwe also indicated that MOI chose to sue the Herald under the Media Law because a criminal defamation claim under the Penal Code would have required the president to show up—and possibly testify—at the trial.
“It seems to me that MOI chose to pursue charges against the Herald under the Media Law because a prosecution under the Penal Code would require the president—or at least a representative from the president’s office—to be present at court,” he said.
Another issue that may have dissuaded MOI from pursuing criminal defamation charges against the Herald is that the Penal Code provides several exceptions that, if satisfied, absolve defendants of liability for defamation.
The second exception says that it’s not defamation “to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct.”
In other words, it would not be defamatory for a newspaper to publish a quote which says a public official is insane if, in fact, that public official’s conduct appears insane.
The ninth and tenth exceptions say that it’s not defamation if an otherwise defamatory statement or caution is made “in good faith for … the public good.” By contrast, the Media Law’s ethical responsibilities section actually requires news workers to write news that promotes the “public interest.”
In many countries – including Burma – defamation laws make certain exceptions for statements that are made in the public’s interest, and countries that value free speech and public dialogue usually consider criticism of public figures to be in the public’s best interest.
On Tuesday, AFP wrote that the Herald is “renowned for its criticism of the government and ministers.”
In its statement, Reporters Without Borders condemned Burma’s Special Branch—a police intelligence agency—for harassing the news media on the pretext of conducting financial audits, citing an incident on 23 July in which Special Branch officers went to the Herald’s office and detained three editors without any explanation.
Currently, the Information Ministry is pursuing various charges against Eleven Media Group and the Aungzeyatu News Journal, but the Herald is the first journal to be charged under the Media Law, which was drafted by the Press Council and passed by Burma’s parliament earlier this year.