Como o poder usa a lei da difamação para calar os seus críticos
PHNOM PENH AND YANGON THE ECONOMIST 13.07.17
Nalguns países, insultar os políticos pode levar à cadeia.
IN OCTOBER 2015, a month before the election that returned Myanmar to a form of civilian rule, a Burmese writer named Maung Saungkha posted a poem on his Facebook page: “On my manhood rests a tattooed/portrait of Mr President/ My beloved found that out/After we wed/She was gutted/Inconsolable.” He was found guilty of defaming Thein Sein, then Myanmar’s president, and sentenced to six months in prison. Mr Thein Sein had suffered no material damage. He served out his term in office without anyone mistaking him for a penis tattoo. But Mr Maung Saungkha believes that in the run-up to the election the government was aiming to “spread fear, curtail freedom of speech and silence activists”.
Governments pursuing such goals have many options. They can press blasphemy laws into service, as those of Indonesia, Pakistan and dozens of other countries do. They can twist the media to their will. In Russia Vladimir Putin and his cronies control the main television-news stations. Or they can simply ban speech they dislike. In China and Vietnam independent bloggers are often arrested. Three Lao citizens recently received long jail terms for violating a decree forbidding online criticism of the government or ruling party.
All these approaches attract international criticism. So some governments turn instead to defamation laws. Defamation is recognised almost everywhere as grounds for a civil claim, in which subjects of wanton and damaging falsehoods can demand financial compensation. But when defamation is a criminal offence, governments can go beyond fining critics who have caused demonstrable harm, and imprison them simply for speaking. Though several countries have recently decriminalised defamation, many more still prosecute it zealously. And even where it can no longer lead to jail, charges can stifle criticism if courts award vast damages.
Criminal-defamation laws come in many forms. Thailand prohibits even the slightest criticism of its king, who is believed to be semi-divine. Serajeddin Mirdamadi, a journalist in Iran, is serving a six-year prison sentence for what was deemed “propaganda against the state”. In Morocco three years ago a 17-year-old was sentenced to three months in jail for rap lyrics about police corruption that were deemed to “harm public morality” and “offend a state institution”. Moroccans can also be imprisoned for “any offence” directed at the royal family or “inciting prejudice against territorial integrity”—a charge aimed at critics of Morocco’s disputed claim of sovereignty over Western Sahara.
It takes bravery to speak out against the government in a country with such laws. In Cambodia, for instance, one way that the prime minister, Hun Sen, has held onto power since 1985 has been by using defamation laws against his opponents, most notably Sam Rainsy, one of the founders of the main opposition party. Since he fled to France in 2015 to avoid arrest in one defamation case, Mr Sam Rainsy has been convicted in absentia in two others, both of which attracted jail sentences.
Mr Hun Sen also targets ordinary citizens with defamation suits. Ou Virak, a political analyst, faces charges for a remark made during a radio programme. Five human-rights activists were detained for more than a year over charges stemming from leaked recordings that allegedly captured flirtatious remarks between another opposition politician and his hairdresser. A spokesman for Mr Hun Sen’s party said that Mr Ou Virak had claimed the affair was concocted by the party to smear an opponent. The party filed a criminal-defamation complaint against him, demanding around 400m riel ($100,000) in damages.
“Face-saving is really important,” says Mr Ou Virak. “If you criticise the government, they take it personally.” He has struggled to find a lawyer: opposing a despot is not a good career move.
In civil defamation cases, plaintiffs must show they were materially harmed by someone else’s words; for example, malicious rumours spread by a business rival to destroy a company; or a criminal record invented by an ex-lover to destroy a career. The court will decide on suitable recompense. Under criminal-defamation laws, insults themselves are illegal, never mind whether they caused any harm.
In May a Burmese woman was sentenced to six months in jail for sharing Facebook posts deemed insulting to Aung San Suu Kyi, the country’s de facto leader, under a law that criminalises “defaming, disturbing [or] threatening…any person by using any Telecommunications Network”. At least 65 people have been charged under it since Ms Suu Kyi’s government took power. Between 2013 and 2015 the army-backed government that passed the law used it just seven times. Even an accusation usually means jail, because defamation is not a bailable offence. On July 7th Myanmar’s parliament published modest amendments that would make defamation bailable and ban third-party suits. But their passage is uncertain, and activists argue that the law is so pernicious it should be revoked altogether.
Thailand’s lèse-majesté law is possibly the strictest criminal-defamation law anywhere. The current version states that “the King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action.” Anyone who “defames, insults or threatens the king, the queen, the heir-apparent or the regent” can be imprisoned for up to 15 years. The government, which seized power in 2014 and delayed an election planned for this year, has charged at least 77 people with lèse-majesté, 22 with sedition and 120 for violating an order forbidding public discussion of a proposed referendum to give it more power. Virtually all have been convicted, many in military courts.
A broadly drawn criminal-defamation law is a weapon that can be wielded, not just by the government, but by anyone thin-skinned who has enough money to hire a lawyer. In 2008 a hospital in Indonesia misdiagnosed a woman as having dengue when she actually had mumps; after an e-mail she had written to friends complaining about the misdiagnosis was circulated on social media, doctors at the hospital filed a defamation complaint against her. She was acquitted only after more than a year and two criminal trials.
In Thailand last March a mining company filed charges against four journalists for reporting on environmental harms allegedly caused by a mine it manages in Myanmar. (The case was eventually dismissed.) A journalist working for the BBC could be imprisoned for five years if he is convicted on a charge of criminal defamation filed by a Thai lawyer who was unhappy with his reporting. In 2014 a journalist in Greece was sentenced to three months in prison for criticising a school director’s political views; two years later an aggrieved Greek businessman brought charges against another journalist that resulted in a 26-month prison sentence. (It was overturned on appeal.)
Large fines for those found guilty of defamation are yet another way to chill free speech. Government officials in Singapore have sued and bankrupted critics for statements that politicians in many other places would have disputed, laughed off or simply ignored. Lee Kuan Yew, Singapore’s founder, all but admitted to using defamation suits this way. “If we had considered them serious political figures, we would not have kept them politically alive for so long,” he said in 2003 of two opposition politicians. “We could have bankrupted them earlier.”
Agnes Callamard, a former UN special rapporteur on freedom of expression, spies a welcome global trend toward decriminalising defamation. In recent years Jamaica, Kenya, Mexico and Zimbabwe have repealed their laws. India is considering doing so. But too often progress is more on paper than in reality. Cambodia has removed jail time for defamation convictions, but it remains for failure to pay court-ordered fines, which can turn an award of hefty damages into de facto imprisonment. So it remains easy for the government to mute its critics. “They had to pick on someone to make an example of,” says Mr Ou Virak. “And I said the first thing.”
Governments pursuing such goals have many options. They can press blasphemy laws into service, as those of Indonesia, Pakistan and dozens of other countries do. They can twist the media to their will. In Russia Vladimir Putin and his cronies control the main television-news stations. Or they can simply ban speech they dislike. In China and Vietnam independent bloggers are often arrested. Three Lao citizens recently received long jail terms for violating a decree forbidding online criticism of the government or ruling party.
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The American constitution’s first amendment grants strong protection to speech, especially criticism and insults aimed at public figures. But in most of Asia, and much of Africa, Latin America and the Middle East, defamation is in some circumstances a crime, as it is in Canada and 23 members of the European Union. Between 2009 and 2014 at least 15 EU countries sentenced journalists to criminal penalties, including fines and jail, for insults and defamation.Criminal-defamation laws come in many forms. Thailand prohibits even the slightest criticism of its king, who is believed to be semi-divine. Serajeddin Mirdamadi, a journalist in Iran, is serving a six-year prison sentence for what was deemed “propaganda against the state”. In Morocco three years ago a 17-year-old was sentenced to three months in jail for rap lyrics about police corruption that were deemed to “harm public morality” and “offend a state institution”. Moroccans can also be imprisoned for “any offence” directed at the royal family or “inciting prejudice against territorial integrity”—a charge aimed at critics of Morocco’s disputed claim of sovereignty over Western Sahara.
It takes bravery to speak out against the government in a country with such laws. In Cambodia, for instance, one way that the prime minister, Hun Sen, has held onto power since 1985 has been by using defamation laws against his opponents, most notably Sam Rainsy, one of the founders of the main opposition party. Since he fled to France in 2015 to avoid arrest in one defamation case, Mr Sam Rainsy has been convicted in absentia in two others, both of which attracted jail sentences.
Mr Hun Sen also targets ordinary citizens with defamation suits. Ou Virak, a political analyst, faces charges for a remark made during a radio programme. Five human-rights activists were detained for more than a year over charges stemming from leaked recordings that allegedly captured flirtatious remarks between another opposition politician and his hairdresser. A spokesman for Mr Hun Sen’s party said that Mr Ou Virak had claimed the affair was concocted by the party to smear an opponent. The party filed a criminal-defamation complaint against him, demanding around 400m riel ($100,000) in damages.
In civil defamation cases, plaintiffs must show they were materially harmed by someone else’s words; for example, malicious rumours spread by a business rival to destroy a company; or a criminal record invented by an ex-lover to destroy a career. The court will decide on suitable recompense. Under criminal-defamation laws, insults themselves are illegal, never mind whether they caused any harm.
In May a Burmese woman was sentenced to six months in jail for sharing Facebook posts deemed insulting to Aung San Suu Kyi, the country’s de facto leader, under a law that criminalises “defaming, disturbing [or] threatening…any person by using any Telecommunications Network”. At least 65 people have been charged under it since Ms Suu Kyi’s government took power. Between 2013 and 2015 the army-backed government that passed the law used it just seven times. Even an accusation usually means jail, because defamation is not a bailable offence. On July 7th Myanmar’s parliament published modest amendments that would make defamation bailable and ban third-party suits. But their passage is uncertain, and activists argue that the law is so pernicious it should be revoked altogether.
Thailand’s lèse-majesté law is possibly the strictest criminal-defamation law anywhere. The current version states that “the King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action.” Anyone who “defames, insults or threatens the king, the queen, the heir-apparent or the regent” can be imprisoned for up to 15 years. The government, which seized power in 2014 and delayed an election planned for this year, has charged at least 77 people with lèse-majesté, 22 with sedition and 120 for violating an order forbidding public discussion of a proposed referendum to give it more power. Virtually all have been convicted, many in military courts.
A broadly drawn criminal-defamation law is a weapon that can be wielded, not just by the government, but by anyone thin-skinned who has enough money to hire a lawyer. In 2008 a hospital in Indonesia misdiagnosed a woman as having dengue when she actually had mumps; after an e-mail she had written to friends complaining about the misdiagnosis was circulated on social media, doctors at the hospital filed a defamation complaint against her. She was acquitted only after more than a year and two criminal trials.
In Thailand last March a mining company filed charges against four journalists for reporting on environmental harms allegedly caused by a mine it manages in Myanmar. (The case was eventually dismissed.) A journalist working for the BBC could be imprisoned for five years if he is convicted on a charge of criminal defamation filed by a Thai lawyer who was unhappy with his reporting. In 2014 a journalist in Greece was sentenced to three months in prison for criticising a school director’s political views; two years later an aggrieved Greek businessman brought charges against another journalist that resulted in a 26-month prison sentence. (It was overturned on appeal.)
Large fines for those found guilty of defamation are yet another way to chill free speech. Government officials in Singapore have sued and bankrupted critics for statements that politicians in many other places would have disputed, laughed off or simply ignored. Lee Kuan Yew, Singapore’s founder, all but admitted to using defamation suits this way. “If we had considered them serious political figures, we would not have kept them politically alive for so long,” he said in 2003 of two opposition politicians. “We could have bankrupted them earlier.”
Agnes Callamard, a former UN special rapporteur on freedom of expression, spies a welcome global trend toward decriminalising defamation. In recent years Jamaica, Kenya, Mexico and Zimbabwe have repealed their laws. India is considering doing so. But too often progress is more on paper than in reality. Cambodia has removed jail time for defamation convictions, but it remains for failure to pay court-ordered fines, which can turn an award of hefty damages into de facto imprisonment. So it remains easy for the government to mute its critics. “They had to pick on someone to make an example of,” says Mr Ou Virak. “And I said the first thing.”
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