What we missed when commenting on the Myanmar Telecom Law back in 2013

Posted on June 25, 2017  /  0 Comments

Hearing the many reports on prosecutions under section 66(d) of the Law that was enacted in 2013, I went back to my files. In the extensive comments we provided there is nothing that refers to the offenses sections.

The offenses chapter is peculiarly drafted. Section 65 is similar to what is found in any law that requires a license to be obtained for a specified activity. Section 67 is again a necessary section, specifying the penalty for using equipment without a license. Stuck between the two are offenses that are unusual to include in telecom legislation, grouped together as s 66.

65. Anyone who is found guilty of conducting a telecommunications service business without a business license shall be given a prison term of no greater than five years and may be given a fine as well.
66. Anyone who is found guilty of committing any of the following offences shall be given a prison term of no greater three years, or a fine, or both:
(a) Entering and interrupting a telecommunications network, or changing or destroying the standards or original status, without a permission from the owner or the administrator;
(b) Entering a telecommunications network through a virus or another means with a purpose to harm or destroy the network;
(c) Committing theft, fraud, misappropriation or harming someone with the use of a telecommunications network;
(d) Committing extortion, bullying, illegal obstruction, defamation, harassment, abuse of power, or threat with the use of a telecommunications network;
67. If anyone is found guilty and convicted of having in possession or using a telecommunications device that requires a license, that person shall be given a prison term of no more than a year, or a fine, or both.

It begins with s 66(a) what would appear to be a necessary offense, intended to prevent damage to a network. One could of course argue that this is an act covered by normal criminal law. Section 66(b) is about causing harm through a virus or similar means. This, one could argue, is needed because the penal code would not cover this kind of act. Subsections (c) and (d) are about using the network to commit fraud, etc.

There is no need for these kinds of special offenses to be created through what is otherwise a piece of economic legislation. A crime is a crime, whether it is committed using a technological means or not.

There were multiple drafts of the law floating around and so many amendments moved while it went through the Hluttaw. It is now evident that the specific language of s 66(d) had been one of the amendments.

We could not have caught this and objected to the specific language of s 66(d), because of the chaotic nature of the process. The eye must have passed over the offenses that did not quite belong and to which additions were made in the Hluttaw:

c. Stealing, cheating or making misuse of money or any other thing by using a telecommunication network
d. Threatening, coercing, bullying, interfering, or defacing, disturbing , a person to do to others, disturb and behave unreasonable manner to other illegally causing undue influences by using communication network

But we should have objected to the two sub-sections what the legislators then built upon.

It’s time for an amendment.

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