IN 2018 and early 2019, media freedom and the right to free expression came under sustained pressure in the Kingdom of Cambodia. In the past year, the Royal Government of Cambodia adopted several pieces of new legislation that restrict the right to free expression. These new laws have had a chilling effect on the exercise of freedom of expression and media freedom in Cambodia in 2018-2019. Following a trend that began in 2017, there has also been a surge in criminal charges brought against individuals for critical commentary via social media. The sanctioning and closure of many prominent media outlets in 2017 and 2018 have also significantly altered the media landscape and have dealt a nearly fatal blow to media freedom in Cambodia.
Cambodia’s Constitution includes Article 31 that states: “The Kingdom of Cambodia recognizes and respects human rights as enshrined in the United Nations Charter, the Universal Declaration of Human Rights, and all the treaties and conventions related to human rights, women’s rights, and children’s rights.” This includes the International Covenant on Civil and Political Rights (ICCPR), which guarantees freedom of expression under Article 19, as it states, “Everyone shall have the right to hold opinions without interference.” It also says, “Everyone shall have the right to freedom of expression.” Cambodia’s Constitutional Council interpreted Article 31 to mean that the provisions of the ICCPR are directly applicable in domestic law. Article 41 of the Constitution guarantees freedom of expression and press freedom as well.
Cambodia also has a Press Law (1995) that among others includes Article 1, which assures freedom of the press and freedom of publication, and Article 3, which prohibits pre-publication censorship. Too, under the Press Law, the publication of official information may not be penalized if such publication is fully true or an accurate summary of the truth (Article 4), while no person shall be arrested or subject to criminal charges for the expression of opinions (Article 20).
Despite these constitutional guarantees, Cambodia’s legal framework includes several provisions that impermissibly restrict freedom of expression and press freedom.
Ironically, among these is the Press Law itself, which contains some vague provisions that can be subject to arbitrary interpretation by judicial authorities and restrict freedom of expression of journalists as well as editors and news-outlets owners. For example, the Press Law restricts content that “may cause harm to the national security and political stability” (Article 12) or “affect the good customs of society” (Article 14). These vaguely worded provisions involve heavy fines, and, in the case of Article 12, the possibility of the Ministries of Information and Interior suspending publications for up to 30 days without any recourse to appeal.
In addition, there are the criminal offences of defamation, insult, incitement, publication of commentaries intended to unlawfully coerce judicial authorities and discrediting judicial decisions. Also having provisions that restrict the right to free expression are the Law on Elections of Members of the National Assembly and the Telecommunications Law.
Legalizing controls on free speech and media
Since 1 January 2018, the government has enacted several pieces of legislation, regulations, and policies that have placed additional excessive restrictions on free speech and media freedom.
• Amendments to Articles 42 and 49 of the Constitution, enacted in February 2018,
require political parties and Khmer citizens to “primarily uphold the national interest” and refrain from “conduct[ing] any activities which either directly or indirectly affect the interests of the Kingdom of Cambodia and of Khmer citizens”. These amendments introduce a risk of the legitimate exercise of freedom of expression becoming unconstitutional if deemed “directly or indirectly” to affect the “national interest”.
• In February 2018, the Criminal Code was amended to include a ‘lèse-majesté’ offence, which impermissibly restricts freedom of expression. Article 437-bis criminalizes “any speeches, gestures, scripts/writings, paintings or items that affect the dignity of [the King]”, and carries a prison sentence of up to five years and a fine of up to ten million riels (US$2,500) for individuals. Legal entities face fines of up to 50 million riels (US $12,500), as well as additional sanctions including dissolution, forfeiture of assets, and prohibition of certain activities. In relation to the media, several government officials made statements indicating that media outlets should refrain from re-publishing an insult to the King when covering such a case. In May 2018, Cambodia’s Ministry of Information for instance urged owners of media outlets to refrain from quoting messages, audios, images or videos from any sources that insulted the King.
Within one year after the promulgation of the lèse-majesté amendment to the Criminal Code, two individuals were convicted under the new article 437-bis for allegedly insulting the King on social media. In October 2018, a 70-year-old barber and former Cambodian National Rescue Party (CNRP, the main opposition party) government director for Siem Reap Province, Ban Samphy, was sentenced to one year in prison by the Siem Reap Provincial Court (of which he has to serve seven months), marking the first conviction under the ‘lèse-majesté’ criminal offence. He had been arrested in May 2018 in Siem Reap for allegedly sharing a picture and text on Facebook deemed insulting to the King.
On 9 January 2019, a second individual, Ieng Cholsa, was convicted to three years imprisonment by the Phnom Penh Municipal Court for posting messages and images allegedly criticizing the King on Facebook. He had been arrested in June 2018 in Phnom Penh.
In addition to these two convictions under the lèse-majesté offence, a 50-year-old primary school principal, Kheang Navy, was arrested and placed in pre-trial detention in Kampong Thom Province in May 2018 for allegedly making comments on Facebook about the purported role of the King in CNRP’s dissolution. He was released from pre-trial detention in December 2018. Exiled opposition leader Sam Rainsy was also summoned to appear at the Phnom Penh Municipal Court on 12 July 2018 for questioning due to a Facebook post that allegedly violated the ‘lèse-majesté’ offence.
• In May 2018, the National Election Committee (“NEC”) released a “Code of Conduct for the Media”, outlining media regulations for the coverage of the July 2018 election and which contains provisions that prohibit broad categories of speech. The Code, for instance, prohibited journalists from “broadcasting news leading to confusion and confidence loss in the election”; using “provocative or offensive language that may cause disorder or violence”; and “publishing or broadcasting news that affects national security, political, and social stability” — all without providing specifics or clear definitions and criteria.
• In May 2018, the Ministry of Information, Ministry of Interior, and Ministry of Posts and Telecommunication (MPTC) adopted an Inter-ministerial Regulation on Website and Social Media Control. This regulation or provides for unchecked systematic mass surveillance of online activities. Among other provisions, the prakas empowers the MPTC to shut down websites and social media pages found to be disseminating offending content or “information willing to create turmoil in the society”. The MPTC also requires that all Internet service providers operating in Cambodia “install software programs and equip internet surveillance tools to easily filter and block any social media accounts or pages that run their business activities and/or publicize illegally”.
Readying yet more laws
Several draft laws introduced between 2018 and 2019, as well as announcements regarding future legislative developments, are also poised to have an impact upon the right to free expression and media freedom in Cambodia.
• In January 2018, the Ministry of Information, with the assistance of UNESCO, released a draft Law on Access to Information held by public bodies. While the draft law generally complied with freedom of expression standards and includes protection of whistleblowers, some concerns remained regarding the categories of information deemed confidential and the responsibilities given to the “officer in charge of information”. In February and March 2019, the draft law was reportedly being reviewed by inter-ministerial committees.
• In March 2019, a representative from the Ministry of Interior confirmed relevant ministries were in the process of drafting the anti-cybercrime law, but did not specify the timeline for the finalization of the draft. Such a law has been proposed a number of times since 2012. An informal version of the draft cybercrime law was released in 2014 and widely criticized for its overly broad provisions that would severely restrict the freedom of expression online. A second draft was also informally released in 2015, raising similar concerns.
• In April 2018, a ruling party spokesman announced that the government was looking into drafting a “fake news” law, raising concerns that such laws could be used to silence online criticism towards authorities. In March 2019, the Prime Minister called on relevant ministries to consider drafting an “anti-fake news law”.
Arrested, charged, beaten up
As it is, more and more journalists have found themselves entangled in the country’s legal system. Among the journalists who were arrested and/or charged because of their work in 2018-2019 are:
■ Two former Radio Free Asia (RFA) journalists, Yeang Sothearin and Uon Chhin, who were detained in November 2017 on charges of providing a “foreign state with information which undermines national defence” (Article 445 of the Criminal Code). While no evidence to substantiate the charges has been made public, the period of their pre-trial detention was extended without legitimate grounds. The two were eventually released on bail in September 2018, but the charges against them remain pending. In March 2019, their case was reportedly ready to proceed to trial, although no date has been set.
■ Aun Pheap, a Cambodian journalist, who in March 2018 fled to the United States. He had feared arrest after he was charged with incitement to commit a felony on 28 August 2017, alongside his Canadian colleague. The charges followed their coverage of the 2017 commune elections in Ratanakiri Province while they were working for the Cambodia Daily. They had interviewed former opposition members, some of whom later alleged that the two journalists “incited” them by asking why the people in the commune had previously elected the opposition party.
■ At least three journalists reporting on natural resources issues who were subjected to legal action. In September 2018, two journalists from TNM Online TV were arrested in Pursat Province and sent to the provincial police station for “incitement and broadcasting disinformation” after tycoon Try Pheap filed a complaint. The journalists had filed a news story about Try Pheap’s MDS Company excavating part of a ricefield. Also in September 2018, another journalist from TNM was summoned for questioning in Mondulkiri Provincial Court, over allegations of “defamation” following a complaint by the office head of the Keo Seima Wildlife Sanctuary. The Sanctuary head said that the journalist had wrongly accusing him of colluding with traders to log and haul luxury timber in the protected area.
■ Australian journalist and filmmaker James Ricketson, who on 31 August 2018 was found guilty of espionage and sentenced to six years in prison. Ricketson had been brought in for questioning in June 2017 after being charged with “espionage” and gathering information for a foreign power that could damage national security. Ricketson had actually flown a drone without a permit over an opposition rally. He was released on 21 September 2018 after receiving a royal pardon, and was deported a day later.
As if all these were not enough, journalists in Cambodia have been subjected to violence as well. A survey conducted out by the Cambodian Centre for Independent Media (CCIM) in November 2017 also revealed that 14 percent of journalists reported having been verbally or physically attacked during the past year, while 20 percent reported having been threatened. In January 2019, a journalist from the Cambodia Media Association for Freedom was attacked while taking photos of and covering illegal fishing activities in Siem Reap province. In February 2019, a journalist from BTBP TV Online was even beaten to death in Kratie Province, although it is unclear if his murder was related to his media work.
Unfortunately, cases involving crimes against journalists in Cambodia are often either not investigated at all or investigated without transparency, independence, and impartiality. And when perpetrators are convicted, they often receive a lenient sentence or are released early.
A hostile climate for free expression and free press
All these have had a chilling effect on members of the Cambodian media. Indeed, in CCIM’s November 2017 survey of 75 Cambodian journalists, 67 percent of the respondents said that they did not feel completely free to report on all subjects without fear of interference or repercussions, up from 58 percent in 2015 and 47 percent in 2014.
Journalists should be permitted to do their work, including exposing corruption, criticizing public policies, and shedding light on human rights violations, in an environment that promotes their safety, without fear of negative repercussions. But Cambodia’s dismal media climate in 2017 had only worsened in 2018-2019. One of the serious challenges faced by journalists in Cambodia during this period has been the tightening of legal screws on the media, which only make it all too easy for journalists to be subjected to legal actions as a result of their work.
No wonder then that in the 2018 World Press Freedom Index by Reporters without Borders (RSF), in Cambodia was ranked 142 out of 180 countries — 10 places lower than in 2017. Too, in view of the acute restrictions placed upon media freedom in Cambodia in recent years, Cambodia received nine recommendations during its Third Universal Periodic Review with the UN Human Rights Council, specifically addressing steps Cambodia should take to ensure it respects its international obligations regarding the protection and respect of press freedom.
In order to meaningfully restore an enabling environment for a free and pluralistic media, the government should take concrete steps that should include amending legislation that currently place excessive restrictions on free speech and media freedom. The objective should be to bring it in line with international standards and cease judicial harassment against journalists (including dropping charges against the two former RFA reporters).
— Southeast Asian Press Alliance (SEAPA), PCIJ, May 2019