Strategic litigation: Freedom of expression online – SE Asia

Event report

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This panel dealt with the use of strategic litigation in defence of online freedom of expression in Southeast Asia. It was jointly sponsored by the American Bar Association Rule of Law Initiative and the Media Legal Defence Initiative.

The first speaker, Mr Pádraig Hughes, Legal Director, Media Legal Defence Initiative (MLDI), stressed that MLDI works through strategic litigation to challenge those cases in which the law is used to prevent journalists from reporting on the news, and cases in which the community is prevented from accessing the news through the Internet. Three areas are the focus of MLDI: issues of intermediary liability, cyber crime law and their implications for freedoms, and illegal shutdowns. One of the examples Hughes mentioned came from MLDI’s work in Tanzania, where cybercrime laws are infringing on the right to freedom of expression. Generally, strategic litigation is used by MLDI with the hope that decisions in one jurisdiction have impact on other jurisdictions.

Mr Asep Komarudin, Head, Research and Networking Division, Legal Aid Center for the Press, Indonesia, provided a regional perspective from Southeast Asia on strategic litigation.  Komarudin argued that the right to freedom of expression is negatively impacted by national security regulations, the strategic use of investigatory powers, harassment, and restrictions on civilians. Activists and journalists use the Internet as a tool to support pro-democracy movements. He described the law in Southeast Asia as ‘absurd’ in the sense that many cases are highly political. He also pointed out that few countries in the region have data protection laws.

Ms Maria Cecilia Soria, Lawyer and Lead Drafter of the Magna Carta for Philippine Internet Freedom, introduced two cases of strategic litigation in relation freedom of expression in the Philippines. One of them concerned the Cybercrime Prevention Act of 2012. A key concern is the treatment of online libel in the act. One of the critical responses was the drafting of the Magna Carta for Philippine Internet Freedom, which, if approved by congress, would represent an Internet Bill of Rights for Filipinos.

Mr Preap Kol, Executive Director, Transparency International Cambodia, spoke as a representative of civil society, and stressed the importance of advocacy and the support of the wider public and credible institutions. He reported on the arrest of members of parliament for posting content on Facebook, and the curtailments on freedom of expression in Cambodia with regard to critical parts of civil society. He also mentioned the successful pushback on the restrictive cybercrime law in Cambodia.

Mr L. Khun Ring Pan, Lawyer, Myanmar, described the Electronic Transactions Law (2004), which could punish online expressions with up to 15 years imprisonment. He described how the 2014 Telecommunications Act for Online Defamation criminalised online expression and illustrated implications and some of the reactions and pushback.

During the discussion, a member of the audience argued that strategic litigation takes advantage of, and goes hand in hand with public opinion. Another member of the audience hinted that in situations of severe curtailment of rights, strategic litigation is not the most appropriate first response.  A further commentator pointed out that choosing representative cases, such as a well-known journalists or civil rights activists, might not work in all situations and suggested that flooding courts with cases might be more effective. 

by Dr Katharina Hoene