Using the Penal Code in the absence of a cybercrime law

The number of internet users in the Kingdom of Cambodia (“Cambodia”) is growing exponentially; the most recent estimate (from the second quarter of 2015) placed internet users at over 41% of the population – an enormous leap compared with World Bank statistics from 2010, which indicated that internet penetration stood at just 1.3%.1 An increasing number of netizens – including bloggers, journalists, news outlets, non-governmental organizations (“NGOs”), activists, and university students – have started to use the internet, especially social media sites, as a tool to spread information and express political opinions. In the past, the internet has been a relatively free space in Cambodia; however, this protected status is being rapidly eroded by a targeted crackdown on internet freedom and digital rights by the Royal Government of Cambodia (“RGC”). At least seven people have been arrested for their comments online since August 2015, and all but one of these individuals remain in prison. In addition, at least 23 individuals have been publicly threatened since August 2015 on the basis of social media comments.

Social media has rapidly become the foremost medium for political commentary and debate in Cambodia. Citizens who were previously denied an outlet to express their dissatisfaction with government practices have taken to social media in droves. This trend was brought sharply into focus during the 2013 national election. The opposition Cambodian National Rescue Party (“CNRP”) effectively tapped into Cambodia’s growing online community, gathering significant support among the youth and urban populations, in turn causing significant political upset as the CNRP came closer than ever to victory, winning 55 seats in the National Assembly. Partly in response to this shock result, and partly due to an overall sense of paranoia about an increasingly empowered and connected citizenry, the RGC has increasingly resorted to cracking down on those who criticize the government via social media.

In late 2014, the Council of Ministers’ Press and Quick Reaction Unit announced the creation of a “Cyber War Team”,2 with the stated aim of monitoring all online activity to “protect the government’s stance and prestige”, while the Ministry of Interior announced that it would install surveillance equipment in all of Cambodia’s mobile phone networks and Internet Service Providers (“ISPs”). In addition, proposed laws which threaten digital rights have been introduced or proposed, while abusive implementation of the Penal Code is becoming far more common in respect of internet users. The increasing prevalence of the internet as the primary medium for political debate is both an opportunity and a threat to the promotion of human rights in Cambodia. While ordinary citizens have more opportunities than ever to engage in the political process, the RGC has increased its capacity to monitor content posted online, increasing the likelihood of those who are perceived to oppose government interests being judicially harassed.

In the absence of concrete Internet usage laws, the government has relied on vague provisions in the Penal Code to strike against freedom of expression in hopes of keeping future individuals from posting negative or dissenting comments against the government and government elite online. Prime Minister Hun Sen has directly warned citizens that his government is able to track down users within hours of posting any inflammatory remarks and has promised to do so.3 With the uptick in threats and arrests, civil society is even cautioning individuals and calling for responsible Internet use.

Hun Manet, the son of Prime Minister, Hun Sen, launched a lawsuit against Facebook user Chham Chhany for fabricating stories that affected his family’s honor and decency.4 Kong Raiya, a 25 year-old, first year-university student remains in detention for calling for a “colour revolution” on Facebook in order to “change the cheap regime running Cambodian society.” Charged under Article 495 of the Criminal Code of Cambodia, “Provocation to Commit Crime,” he may face up to two years in jail.5

While public posts threatening bodily harm are not condoned, the cautions issued by NGOs and the political opposition will potentially play into the government’s hands, preventing individuals from posting their opinions about current issues due to fear of legal action. This not only stifles freedom of expression in Cambodia, but also generally threatens democracy and civil participation in society. Significant headway is being made in the creation and passage of laws relating to the Internet; unfortunately, these legislative developments are threatening the human rights of internet users. The Cambodian government announced the drafting of a Cybercrime Law in 2012 with the intent to “prevent any ill-willed people or bad mood people from spreading false information, groundless information that could tend to mislead the public and affect national security or our society.”6

Draft Cybercrime Law

The draft law leaked in April 2014, but the RGC has refused to publicly release an official version of the draft. The highly controversial draft Cybercrime Law contains several provisions, which, if passed, could severely restrict freedom of expression online, and are likely to result in self-censorship. CCHR has previously raised concerns regarding the draft law’s potential negative impacts on freedom of expression.7 Of particular concern is Article 28, which prohibits publications on a number of vaguely defined grounds and provides for heavy prison sentences and fines. Some of the most problematic provisions seek to prohibit content deemed to “generate insecurity, instability and political incohesiveness” (Article 28(3)) or “deemed damaging to the moral and cultural values of the society,” including “manipulation, defamation, and slanders” (Article 28(5)(c)). Article 28(4), which prohibits content “undermining the integrity of any governmental agencies,” could hinder the ability of civil society to monitor the RGC’s activities – a crucial role in an emerging democracy – as well as serve to silence activists and political opposition. Moreover, Article 35 includes “dissolution” as an accessory penalty for legal entities – which would include civil society organizations – that commit offenses under Articles 21 to 32, and places an improper restriction on freedom of expression. Finally, the proposed inclusion of predominantly high-ranking members of the government in the National Anti-Cybercrime Committee (the “NACC”), as outlined in Article 6, will not lead to the creation of an independent review institution for internet usage.

In response to the outrage expressed over the release of the first draft, a second Cybercrime Draft Law was leaked to certain NGOs from the Ministry of Interior in September and October 2015. The second draft is very clearly a “working draft.” Indeed, some articles are copied directly from the Council of Europe’s Convention on Cybercrime, and at least one article – Article 25 – references article numbers that do not correspond to articles in the Draft, but rather to articles in the first draft Cybercrime Law, which has led to questions regarding the reliability of the document. Moreover, this method of leaking both drafts to selected organizations is no replacement for an open and consultative legislative process, which takes the concerns of the general public and civil society into account in a transparent manner. Although the second leaked draft removed some of the most troubling provisions contained in the first draft – such as the creation of the NACC – it nonetheless contains new provisions which also threaten digital rights. Article 27 allows for the dissolution of legal entities – including NGOs – on the basis of the ‘cybercrimes’ of individuals affiliated with the organizations. Additionally, the draft confers overly broad and intrusive powers upon police and investigators to search and seize the property of those suspected of ‘cybercrimes’, with a complete lack of judicial oversight and procedural safeguards, threatening the right to privacy and the right to freedom of expression. The individual crimes enumerated in the draft very broadly defined, and would give significant scope to the RGC to implement the law abusively against its perceived opponents, in violation of national and international human rights guarantees. For example, Article 13(1) criminalizes obtaining data that “…are considered to be confidential and which are specifically protected against unauthorized access…” There is no intent element; a person may be imprisoned for receiving an email containing such data, even if that email was sent by mistake or the receiver did not know that he did not have permission to view it. Finally, most of the crimes enumerated in the second draft are duplicative, and can already be punished under the criminal code, calling into question the need for a Cybercrime Law at all.

One internet use law which has already been passed is the Telecommunications Law, which has the “purpose of defending the benefits of the following parties: (1) Telecom sector and operators; (2) users (individual citizens, government and private sectors); and (3) government (collection of revenue.”)8 The National Assembly adopted this law on 30 November 2015. The Telecommunications Law, which increases the government’s control over the industry, also seriously threatens the rights to privacy of correspondence and freedom of expression. Under Articles 6 & 7, the MPTC will have authority to order telecommunications providers to hand over data, systems and equipment, or transfer control of telecommunication systems to the Ministry where it serves the national interest, security and stability and public order. Article 97 criminalizes eavesdropping for private individuals, but makes an exception for eavesdropping “with approval from legitimate authority”, which effectively gives the MPTC carte blanche to spy on the correspondence of citizens, because no legal or procedural safeguards are included in the law, nor is any authorization process outlined. Articles 93 – 96 contain vaguely worded provisions which allow for harsh and disproportionate prison sentences for people found to be using telecommunications to plan criminal activity or damage property. Penalties, as stated in Chapter XIV, range from $2,400 to as much as $250,000 and carry between 1 week and 15 years in prison.

In light of the recent spate of internet-related arrests and warnings, along with dangerous new legislation, human rights on the internet in Cambodia are under serious threat. With a national election coming up in 2018, it is a crucial time for digital rights to be guaranteed in order to safeguard Cambodian democracy.