In a dilapidated, colonial courthouse, two Reuters reporters who exposed a military massacre of 10 Rohingya civilians sat handcuffed as they listened to a judge rattle off his reasons for convicting them under Myanmar’s Official Secrets Act. In phones and notebooks belonging to Kyaw Soe Oo, 28, and Wa Lone, 32, police had found a few bits of information the court deemed incriminating: the outdated travel itineraries of Pope Francis and Myanmar’s vice president, previously published police reports on violence in Rakhine State, and the phone number of a commander of a Rakhine nationalist militia.
The judge’s focus on these innocuous snippets of information was not part of the prosecution’s original plan. The case began in December 2017 with prosecutors arguing that the two reporters were found with a bundle of classified government documents in their car. In the hearings that followed, the Reuters defense team dismantled that claim, revealing that the documents had been planted on the two reporters by police who had been ordered to entrap them, and that the information they contained had long been in the public domain. By shifting attention to the reporters’ phones and notebooks, the prosecution offered the judge a more plausible pretext for a conviction.
“They tried many times to get their hands on secret documents and pass them to others,” judge Ye Lwin said. “They did not behave like normal journalists.” On September 3, he sentenced Kyaw Soe Oo and Wa Lone to seven years of hard labor under a law enacted to protect the British Empire from spies. “The court ruling is totally inconsistent with a free press and sends a chilling message to journalists in Myanmar, but Reuters coverage has and will continue, unabated,” a spokesperson for Reuters tells CJR.
Nonetheless, the verdict, as well as the mental and legal acrobatics the prosecutors and judge performed in order to reach it, serve as a warning from Myanmar’s leaders about how journalists are expected to do their jobs. The accuracy of Kyaw Soe Oo and Wa Lone’s reporting and the military’s subsequent admission of guilt for the massacre did not excuse them. With this threat hanging overhead, journalists working in Myanmar are left grasping for guidance on how to proceed without risking their freedom.
The government’s position is that journalists must avoid handling any information that could potentially be considered a state secret. “The government regards embarrassing information about its performance and its wrongdoing as national security secrets,” according to Yin Yadanar Thein, manager of the advocacy group Free Expression Myanmar (FEM). Therefore, state prosecutors can interpret any investigative political reporting as a criminal act.
Yin Yadanar Thein is one of several activists who set up FEM in May 2017 to combat the use of laws to punish speech and prosecute journalists. With funding from American and European charities, FEM has collected and published data on how at least nine of Myanmar’s laws, plus the constitution, are used and often manipulated in order to punish political dissent. The group also advocates for the abolition or amendment of these laws.
In December, days before Kyaw Soe Oo and Wa Lone were arrested, FEM published a report pointing out that prosecutions under one of these laws—the defamation clause of the 2013 Telecommunications Law—spiked dramatically after Aung San Suu Kyi and her National League for Democracy (NLD) party took control of Myanmar’s civilian government. Among plaintiffs with a party affiliation between 2015 and 2017, 80 percent were affiliated with the NLD.
FEM’s findings have predicted what Suu Kyi has gradually revealed since Myanmar’s mass expulsion of the Rohingya began in October 2016: that she and her government, like the military, are intolerant to criticism. In June 2017, she banned the members of a UN-appointed fact-finding mission from entering the country to investigate atrocities against the Rohingya, and in January, her government appointed as deputy information minister Aung Hla Tun, a former Reuters reporter who once said that the “greatest responsibility of media today in Myanmar is safeguarding our national image, which has been badly tarnished by some unethical international media reports.”
At the regional World Economic Forum earlier this month, Suu Kyi defended the verdict against Kyaw Soe Oo and Wa Lone and said the case had “nothing to do with freedom of expression at all.”
The anti-media atmosphere precipitated by Suu Kyi and her colleagues has prompted local journalists to take extreme caution when reporting sensitive stories. Mratt Kyaw Thu, a reporter for the Myanmar-based Frontier magazine reported from restricted parts of the northern Rakhine State days after Myanmar’s genocidal clearance operations began.
“I’ve got many secrets on the Rakhine case,” he tells CJR, adding that he follows a number of personal rules when reporting them. These include changing the wording of secret documents so that they are not recognizable as background sources; avoiding confrontations with law enforcement, even in situations unrelated to journalism; waiting for the right time to publish a sensitive story; and never meeting a source of secret information in private.
“I never meet with any police officers secretly. If they want to give me something secret, I ask them to meet me in public, and they can give it to me secretly, in a secret package, but it has to be in public,” he says.
Other journalists have decided organize. After the June 2017 arrest of a newspaper editor who published a cartoon that mocked Myanmar’s military, dozens of journalists formed the Protection Committee for Myanmar Journalists. The committee has held a series of “black campaigns”—protests where participants wear black to “signify the dark age of media freedom” in Myanmar. Several of these protests have been direct responses to the arrest of Kyaw Soe Oo and Wa Lone.
In the days following the reporters’ sentencing, the committee launched an online campaign using the hashtag #ArrestMeToo. “If a journalist was arrested for the data and phone numbers they collected. . . arrest me too,” members wrote on Facebook.
But despite its defiant streak, the committee counsels caution to journalists. “We must be very careful and avoid traveling to Rakhine and doing stories about the military,” says committee member Tha Lun Zaung Htet. “We have been branded enemies of the state.”
The need for small, local NGOs to advocate for the rights of journalists in Myanmar is exacerbated by the failings of the Myanmar Press Council. The council was formed in 2012 as an arm of the Ministry of Information to adjudicate disputes involving journalists rather than bringing them to court. In 2013, the council became independent from the government, ostensibly to improve its ability to advocate on behalf of journalists, but that advocacy never materialized.
After the Reuters reporters were arrested, the Council did not release a statement for a week. When it finally did, the council only pledged to “provide legal assistance for the accused reporters so that justice would be served.”
When the council elected new leadership last week, its new chairman, veteran journalist Ohn Kyaing, criticized the country’s young reporters as having “weakness in knowledge, experience, and ethics.” He also demanded that the council have a role in defending Myanmar from prosecution by the International Criminal Court, which recently decided that it had jurisdiction over Myanmar’s mass deportation of the Rohingya.
However, there are those on the council who want to see it safeguard the rights of journalists rather than the reputations of Myanmar’s leaders. “It shouldn’t really matter whether a journalist possesses secret information or not. What really matters is whether that secret information serves the public,” says Myint Kyaw, one of the few council members who has spoken out in support of the Reuters reporters.
“If the public has a right to the information, the journalist has a right to violate the law. Media ethics do not prohibit you in this case,” he says. “Sometimes, media ethics and the law might be in conflict, and under these circumstances, we must prioritize media ethics rather than the law.”
At a press conference the day after the sentencing, Kyaw Soe Oo and Wa Lone’s defense lawyer, Khin Maung Zaw, proffered two pieces of practical advice.
“Empty the contents of your phone, every time,” he said, addressing journalists who wish to continue reporting important stories, despite the risk of prosecution. To those who do not wish to share his clients’ fate, the lawyer said: “I would advise them to just zip their mouths.”
Disclosure: Stephen Adler, editor in chief of Reuters, is the chairman of CJR’s Board of Overseers.