Following recent cases of criminal disinformation suits by high-ranking Government officials, the Alliance for Freedom of Expression in Cambodia (AFEC) is demanding for the abolition of Article 62 of the UNTAC (United Nations Transitional Authority in Cambodia) Penal Code which concerns criminal disinformation.
AFEC, a network of 28 Cambodian civil society organisations, was formed in 28 November 2005, in response to an alarming trend of Government-initiated criminal defamation lawsuits against rights activists.
In a 12 October 2006 press statement, AFEC pointed out that the UNTAC Penal Code was created in 1992 for the transitional period under UN administration when there was an ongoing civil war, and “was never supposed to remain the Cambodian criminal law at a time when the country has established true democracy.”
Article 62 of the UNTAC Penal Code states that anyone who publishes, distributes or reproduces information that is false, fabricated, falsified or untruthfully attributed in bad faith and with malicious intent, and that has disturbed or may disturb the public peace, can be imprisoned for six months to three years or fined one million to 10 million riel, or both.
AFEC noted that the article is not consistent with the International Covenant on Civil and Political Rights (ICCPR), to which Cambodia became a state party in 1992.
While acknowledging that the preservation of “public peace” in Article 62 can be a legitimate curb on freedom of expression, according to conditions set by Article 19 (3b) of the ICCPR, AFEC added, “it should be ensured that the term ‘to disturb public peace’ refers to an intention or a plan to cause serious violent actions against state authorities or between different factions of the [citizenry].”
It also stressed that Article 62 is not about protecting the rights and reputations of individual persons, including government officials or public figures; for that, there is Article 63 of the UNTAC Penal Code. “Disinformation and defamation are offences of a very different nature and should not be confused,” AFEC said.
As for false information that may lead to a breach of public order, Article 59 of the UNTAC Penal Code, which touches on criminal incitement, can deal with such cases, it said.
AFEC asserted that Article 62 of the UNTAC Penal Code “is not necessary for securing public peace, and the punishments imposed by this law restrict freedom of expression to an extent that cannot be justified under international law. . . .Merely publishing untrue statements of fact – even if done in bad faith and with malicious intent – will hardly amount to a disturbance of public peace.”
As recourse, it said, there is the mass media, “through which such statements or dangerous rumours can be disputed easily and quickly.” In addition, the 1995 Cambodian Press Law mandates retraction of any disinformation.
AFEC noted that recent cases against two journalists, a dismissed university teacher and three leaflet distributors, showed how Article 62 could be abused to silence criticism. While not endorsing the contents of the incriminated publications, the group insisted that “in all of these cases, there was not the remotest risk that public peace would be disturbed.” Rather, it added, they fitted the offence of defamation under Article 63 of the UNTAC Penal Code, which has been amended in May 2006 to exclude prison sentences.
Referring to the first case of journalists You Saravuth and Dam Sith, who had alleged corruption among high-ranking officials or public figures, AFEC said their aim of influencing the public was “legitimate and even a necessary task for media in a democratic society.”
You Saravuth, the former editor of local bi-weekly newspaper “Sralanh Khmer” (Love Khmer), obtained asylum in Thailand in August following a “misinformation” suit and alleged death threats against him by Okhna (Lord) Hun Tho, a nephew of Prime Minister Hun Sen, over an article that implicated Hun Tho in land grabbing.
On 19 September, Dam Sith was found guilty of “criminal disinformation” for writing an article accusing Deputy Prime Minister Sok An of corruption. Of the sentencing, AFEC said, “The fact that Dam Sith [had] … to pay a compensation of 10 million riel to . . . Sok An in addition to a fine of eight million rails, proves that the concepts of disinformation and defamation were confused in this case. If the court was convinced that something like ‘public peace’ was threatened by the statement made by the journalist, it does not make any sense to compensate an individual official.”
On the second case of dismissed university lecturer Teang Narith, who was charged with “criminal disinformation” and arrested on 4 September for distributing a controversial book he wrote on the political history of the country, AFEC said he should not have been charged for his views. “The fact that the teacher was arrested and is still in prison therefore violates his right to freedom of expression in an intolerable way. The circumstances of his arrest – by military police and without a warrant – are another [indication] that the government [had] acted in an excessive way.”
Lastly, AFEC said the arrest of Hek Samnang, Thach Ngock Suern and Try Non since 13 September for distributing leaflets critical of Hun Sen “cannot be justified under international and Cambodian law” even though the content of the leaflets may be defamatory. The three were charged with disinformation and defamation, according to the Hong Kong-based Asian Human Rights Commission.
AFEC recommended that the Cambodian authorities:
• abolish Article 62 of the UNTAC Penal Code in the course of the current reform of the Cambodian criminal legislation.
• not criminalise the mere publication of a false statement.
• order high-ranking Government officials to stop filing complaints under Article 62 when their individual reputation may be affected by a publication.
• immediately release all persons that are still detained for the recent disinformation charges.