Elsholz v. Germany

ARTICLE 19 is concerned about continued harassment and legal action, filed by members of the military and police, against freelance journalist U Oo Nyein, apparently in response to his articles about illegal activities in the logging and livestock sectors. U Oo Nyein regularly reports for Hot News Journal and works in conflict areas in Kachin State, Myanmar. He has faced years of harassment for his investigations into corruption, and fears that the most recent legal action will lead to his imminent arrest. His concerns follow the killing of Eleven Media journalist Soe Moe Tun in December 2016, thought to be linked to his reporting on illegal logging. Soe Moe Tun’s killers have not been brought to justice.

 “U Oo Nyein is a victim of ongoing harassment and threats for his legitimate and much-needed work investigating corruption and holding powerful people to account,” said Yin Yadanar Thein, ARTICLE 19 Myanmar Programme Manager. “A year after the NLD came to power promising protection of human rights, most of the criminal laws that violate international human rights standards on freedom of expression remain. We urge the government to end the harassment of journalists through the filing of criminal cases, and call for urgent reform of outdated and anti-democratic legal provisions restricting free speech, in particular the Penal Code.”

U Oo Nyein has been the subject of several legal actions - for defamation under Article 500 of the Penal Code in 2015, and under Article 25(b) of the News Media Law in 2016.  In both cases, the complaints were initiated by members of the security forces implicated in the illegal activity about which U Oo Nyein was reporting.  Most recently, in January 2017, a case was filed against him under Article 17(1) of the Unlawful Associations Act for alleged contact with an ethnic armed group, a charged likely to lead to his arrest.  

In addition to legal action, U Oo Nyein has faced physical threats and violence for his reporting, including the bombing of his co-defendant’s house in 2016.  In 2013, a bullet was sent to his home, and he also reports receiving multiple verbal threats. Despite reporting these attacks to the police, no investigation has been conducted and no perpetrators found.

These threats have made it difficult for U Oo Nyein to find a lawyer to represent him. Lawyers in Kachin State, where there is an ongoing conflict between the military and ethnic armed groups, are often afraid to take on a case that involves the military or police.

Criminalising defamation is regarded as a disproportionate restriction on the right to freedom of expression under international law, and the UN Human Rights Committee has stated that imprisonment is never an acceptable punishment in defamation cases. Criminal defamation is very often used by the state, military or powerful people to punish journalists who criticise or highlight corruption and human rights violations.

Reporting on illegal logging is particularly dangerous for journalists in Myanmar. ARTICLE 19 has serious concerns about the protection of U Oo Nyein’s due process rights and his physical security.

Recommendations:

• ARTICLE 19 urges the Myanmar government to implement its election promises, and review and amend all criminal laws that are used to punish journalists who report on corruption and other matters of public interest, in particular the Penal Code.
• ARTICLE 19 calls on the Myanmar courts and state prosecutors to refer all media-related cases to the Press Council in accordance with the News Media Law.
• ARTICLE 19 urges the Press Council to investigate U Oo Nyein’s experiences of harassment, threats and violence, and make their findings public.
• ARTICLE 19 finally calls on the Myanmar military and police to investigate why their members so regularly bring criminal complaints against journalists for corruption and other public interest reporting, and review their internal policies for ensuring democratic accountability.