The Alliance for Freedom of Expression in Cambodia (AFEC) demands for abolishing Article 62 of the UNTAC law on criminal disinformation. The network of 28 Cambodian civil society organizations holds that this legal provision contradicts the Cambodian Constitution and the international human rights law by imposing unjustifiable restrictions to the human right to Freedom of Expression. In the view of AFEC, there are other and much more adequate legal ways how to protect public peace than a law against disinformation. The AFEC is convinced that the mere publication of false statement of facts should not be criminalized at all. In an open society there are many mechanisms that finally lead to the revelation of truth. The recent cases where high-ranking government officials brought criminal disinformation complaints against two journalists, a dismissed university teacher and three people who distributed a leaflet are demonstrating how Article 62 can be abused for silencing criticism. The fact that some of these persons are still arrested is a gross violation of Freedom of Expression.

Article 62 UNTAC law reads as follows: “The director or other party responsible for a publication or other means of communication who took the decision to publis h, distribute or reproduce by any means information that is false, fabricated, falsified or untruthfully attributed to a third person and did so in bad faith and with malicious intent, provided that the publication, distribution or reproduction has disturbed or is likely to disturb the public peace, shall be liable to a punishment of six months to three years in prison, a fine of one million to ten million Riels or both.”

The UNTAC law was crafted in 1992 for the transitional period of Cambodia under UN administration when fighting between the parties of the Cambodian civil war was still going on. UNTAC law was never supposed to remain Cambodian criminal law at a time when the country has established true democracy. In most well-founded democracies, legal provisions on disinformation or dissemination of false news do not exist, have been struck down or fallen into disuse. In some countries, such laws are of very limited scope and pose only little threat to Freedom of Expression. Other countries limit false news provisions to legislation on state of emergency or war.

The right to Freedom of Expression is guaranteed by Article 31 of the Constitution and by Article 19 of the International Covenant on Civil and Political Rights (ICCPR) to which the Kingdom of Cambodia has become a state party in 1992. International institutions like the UN Committee on Civil and Political Rights, the European Court on Human Rights, the Inter-American Court on Human Rights and the African Commission on Human and Peoples' Rights have stated repeatedly that Freedom of Expression is a cornerstone upon which the very existence of a democratic society rests. It is vital to the personal development of the citizens, their political consciousness, and their participation in the conduct of the public affairs in their country.

However, Freedom of Expression is not an absolute right. Article 19, Paragraph 3 of the ICCPR states that the right to Freedom of Expression might "be subject to certain restrictions, but these shall only be such as are provided by law and necessary: a) For respect of the rights and reputations of others; b) For the protection of national security or of public order (ordre public), or of public health or morals."

Restrictions to Freedom of Expression must meet a strict three-part test. The interference must
1. be provided for by law. The law must be accessible and be formulated with sufficient precision to enable the citizen to regulate his conduct.
2. pursue one of the legitimate aims listed in Article 19(3); this list is exclusive.
3. be necessary to secure those aims. There must be a pressing social need. The reasons given to justify it must be relevant and sufficient. The interference must be proportionate to the aim pursued.

Article 62 UNTAC law is not consistent with international law

In the analyses of the AFEC, article 62 UNTAC law fails to pass the above mentioned three-part test. It opens a lot of space for misinterpretation and abuse:

1. Article 62 does not explicitly mention that its provisions restrict the right to Freedom of Expression. The article simply defines in which way the dissemination of false information shall amount to a criminal offense. But particularly, the term "to disturb public peace" remains vague and therefore open to various kinds of abuse by the ruling powers. The concept becomes even more ambiguous when somebody can also be charged for a "likely" disturbance of public peace. The law does not state, how the falsity of a statement shall be assessed. The condition “with malicious intent” is also too vague because it does not clearly specify what this intent must be directed at (at the disturbance of public peace or something else?). Therefore, there is no sufficient definition for the offense of disinformation that would guide the citizen in its conduct.

2. The preservation of “public peace” in Article 62 UNTAC law can be considered to be legitimate aims for interfering with Freedom of Expression according to Article 19 (3b) of the ICCPR. But 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 citizens. At the same time, it should be noted that Article 62 does not pursue the aim of protecting the rights and reputations of individual persons, including government officials or public figures. For protecting the reputation of specific individuals Article 63 UNTAC law, which was amended in June 2006, was provided. Disinformation and Defamation are offenses of a very different nature and should not be confused.

3. In the view of the AFEC, Article 62 of the UNTAC law 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.

At the time of UNTAC administration, rumors about new armed activities of the former civil war factions could have caused a serious disruption of peace and national reconciliation. Fortunately, Cambodia has achieved a state of security and stability where such events do not happen anymore. 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. The government has sufficient access to modern mass media through which such statements or dangerous rumors can be disputed easily and quickly. Furthermore, the Cambodian press law contains provisions through which media can be forced to publish corrections of wrong information.

In most cases where false information may lead to a breach of public order the untrue statements of fact will be combined with expressions of hatred and/or appeals to commit crimes. Such cases can be dealt with legal provisions against criminal incitement which can be found in Article 59 of the UNTAC law.

In modern societies, other situations may occur, where the dissemination of untrue information can cause violence and public chaos. A false alarm, for example, can trigger a mass panic or massive security measures by the State through which the physical integrity or the freedoms of citizens might be harmed. But such cases are not typical for what the Article 62 calls publishing, distributing and reproducing false information. In many other national legislations, malevolent false alarm or gross mischief form a separate category of criminal offenses.

Recent disinformation complaints are abusing Article 62

Based on the observations presented above, AFEC holds that the charges under Article 62 UNTAC law that where brought against various persons since July 2006 were abusing this law and violated the right to Freedom of Expression. AFEC does not endorse the contents or share the ideas of the incriminated publications. But as a matter of fact, in all of these cases there was not the remotest risk that public peace would be disturbed. It is rather the question if those publications had the character of defamation under Article 63 UNTAC law. Since the amendment of Article 63 in May 2006, defamation is no longer by prison terms in Cambodia but only fines of up to 10 million Riels (about 2,500 US$).

The journalists You Saravuth and Dam Sith who made allegations about the involvement of high ranking officials or public figures in corruption tried to exercise public control. Following this aim is legitimate and even a necessary task for media in a democratic society. If the articles of the journalists had lacked evidence for those allegations or contained false statements the concerned persons would have had many other means to defend themselves than filing a criminal complaint with the courts. It is well-established in international law that government officials must be ready to take more criticism than an ordinary citizen. The fact that Dam Sith was convicted by the Phnom Penh Municipal Court to be guilty of criminal disinformation and to pay a compensation of 10 million riel to cabinet member Sok An (in addition to a fine of 8 million riel) 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.

The university lecturer Teang Narith wrote a textbook that contained disputable presentations about the actual political history of Cambodia as well as very rude language, particularly against the Cambodian Prime Minister. For this reason, he had already been sacked by his employer before he was accused and charged of criminal disinformation. But the wrongdoing of Teang Narith rather fits to the offense of defamation. He should not have been charged for his historical 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 proof that the government acted in an excessive way.

The leaflets against the Prime Minister do not fit to the idea of a civilized political discussion between democrats. Eventually, the language that the authors used was defamatory. But, the ongoing imprisonment of these three persons cannot be justified under international and Cambodian law.

Recommendations of the AFEC

Finally, the AFEC gives the following recommendations to the Cambodian authorities:

- Article 62 of the UNTAC law should be abolished in the course of the current reform of the Cambodian criminal legislation.

- The mere publication of a false statement should not be criminalized Cambodian law.

- High ranking officials should cease to file complaints based on Article 62 when their individual reputation is affected by a publication.

- All persons that are still arrested on the basis of the recent disinformation charges should be released immediately.

For more information, please contact:
▪ Ou Virak, General Secretary of the AFEC, at H/P: 012 404 051.

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