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1. Criminal Liability for the offence of Defamation

The interpretation of defamation has been described in various forms by multiple
legal systems. Especially in criminal and civil aspects, there are different recognitions for
the nature of defamation. Salmond defines the meaning of defamation as the publication
of a false and defamatory statement about another person without lawful justification.
Therefore, defamation in law is an assault on the credibility of another person through a
fake publication, communication to a third party that seeks to deceive the person.
In Myanmar, section 499 of the Penal Code specifies the definition of
‘defamation’. It is provided that whoever, by words either spoken or intended to be read,
or by signs or by visible representations, makes or publishes any imputation concerning
any person, intending to harm, or knowing or having reason to believe that such
imputation will harm, the reputation of such person, is said, except in the cases
hereinafter excepted, to defame that person. According to section 499 of Penal Code,
these essentials for the offence of defamation are included: _
 Making or publishing any imputation concerning any person.
 Such imputation must have been made by words, either spoken or intended to be
read; or by signs; or by visible representation
 Such imputation must have been made with the intention of harming, or with
knowledge or having reason to believe that it will harm the reputation of the
person concerning whom it is made.
Typically, there are two types of defamation; libel which is a defamatory statement
made in permanent form and slander which is a defamatory statement made by spoken
words or gestures. The interpretation of ‘defamation’ in Penal Code is used to embrace
both libel and slander.
The definition of defamation is subject to four explanations and ten exceptions which
means if the act of the accused falls within the provided exceptions, he shall not be
deemed to be guilty according to section 499 of the Penal Code. And additionally in the
said section, the exceptions which will not amount to defamation are also provided as
follows: _
1. Imputation of truth which public good requires to be made or published.
2. Public conduct of public servants.
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3. Conduct of any person touching any public question.

4. Publication of reports of proceedings of Courts.
5. Merits of case decided in Court or conduct of witnesses and others concerned.
6. Merits of public performance.
7. Censure passed in good faith by person having lawful authority over another.
8. Accusation preferred in good faith to authorized person.
9. Imputation made in good faith by person for protection of his or other’s interests.
10. Caution intended for good of person to whom conveyed or for public good.
If a person is found guilty of having committed defamation in terms of section 499 of
the Penal Code, he shall be punished with simple imprisonment for a term which may
extend to 2 years or with fine or with both as provided in section 500 of the Penal Code.
In the imputation against the dead person, it may amount to defamation to impute
anything to a deceased person, if the imputation would harm the reputation of that person
if living, and is intended to be hurtful to the feelings of his family or other near relatives
as provided in explanation I of section 499. In this explanation, the word ‘and’ is used
obviously, so that it is essential not only to harm the reputation of that person but also it
is intended to be hurtful to the feelings of his family or relatives. So the publication
concerning the dead person is done with a malevolent purpose, to vilify the memory of
the deceased, and with a view to injure his posterity then it becomes illegal.
In the explanation 4 of the section 499 of the Penal Code, no imputation is said to
harm a person’s reputation unless that imputation directly or indirectly, in the estimation
of others, lowers the moral or intellectual character of that person, or lowers the character
of that person in respect of his caste or of his calling, or lowers the credit of that person,
or causes it to be believed that the body of that person is in a loathsome state or in a state
generally considered as disgraceful.
In the case of Daw Khin Khin Yoe v. The Socialist Republic of the Union of
Burma, 1979, B.L.R, p- 16, accusation and imputation against the person which do not
infringe the provisions provided in section 500 of the Penal Code could not be specified
as ‘defamation’. Any person who make false accusation and imputation against any
person could be charged with the offence provided in section 182 and section 211 of the
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Penal Code, however shall not be presumed as violation of the provisions of section 500
of the Penal Code and could not be specified as the offence of ‘Defamation’.
Currently, ‘The Electronic Transactions Law 2004’, ‘Media Law 2014’ and
‘Telecommunications Law 2013’ lay down the penalty for the offence of ‘defamation’
to protect cybercrimes including cyber-defamation and cyber-bullying. Cyber-defamation
can also be specified as online defamation. Since the meaning of the defamation has been
established in section 499 of the Penal Code, the defamation by utilizing the internet on
the social medias including Facebook, Twitter and Instagram could be identified as
online defamation.
In section 34(d) of the Electronic Transactions Law 2004 which was amended in
2014 with the reduced penalties, it is provided that whoever creating, modifying or
altering of information or distributing of information created, modified or altered by
electronic technology to be detrimental to the interest of or to lower the dignity of any
organization or any person shall on conviction be punished with a fine from 5,000,000
kyats to 10,000,000 kyats. If he could not pay the fine, he shall be punished with
imprisonment for a minimum term of 1 year to a maximum of 3 years. In section 38 of
the Electronic Transactions Law, whoever attempts to commit any offence of this Law
or conspires amounting to an offence or abets the commission of an offence shall be
punished with the punishment provided for such offence in this Law.
In Section 66(d) of Telecommunications Law, 2013, it is provided that whoever
commits act of extorting, defaming, disturbing or threatening to any person by using any
telecommunications network shall on conviction be liable to imprisonment for a term not
exceeding two years or to a fine not more than one million or both. The extent of
punishment was amended in 2017.
In section 9(g) of the Media Law 2014, it is provided that writing style which
deliberately affects the reputation of a specific person or an organization or generates
negative impact to the human right shall be avoided. Any news Media worker who is
found guilty by responsibilities and ethics stated in sub-section (g) of section 9, he or she
will be fined from the minimum of 300,000 kyats to the maximum of 1,000,000 kyats as
provided in section 25(b) of the Media Law.
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2. Term of ‘Good faith’ relating to the offence of ‘Defamation’

The term of ‘good faith’ is established to be exculpated when it comes to the
offence of the defamation. According to section 499 of the Penal Code, the term ‘good
faith’ is excluded only in first exception and fourth exception but in the remaining
exceptions. The definition of good faith is also specified in section 52 of the Penal Code.
In section 52 of the Penal Code, it is provided that nothing is said to be done or believed
in “good faith” which is done or believed without due care and attention. It means that in
order to express an opinion in good faith the person who holds it must have taken care
and attention in forming it. In considering the matter of defamation, the good faith is
noted as for the question of fact whether the action falls within the offence of the
defamation.
The phrase ‘due care and attention’ implies genuine effort to reach the truth and
not the ready acceptance of an ill-natured belief. When a question arises as to whether a
person acted in good faith, then it devolves upon him to show not merely that he had a
good intention but that he exercised such care and skill as the duty reasonably demanded
for its due discharge. The standard of care and caution required by the expression ‘good
faith’ in the exceptions to section 499 of the Penal Code varies with the circumstances of
each case.
In the case of Ma Yin Yin Mya (a) Mar Lay (Appellant) v. Dr. Mya Thoung
(Respondent), 1962 Burma Law Reports (Chief Court), p-108, where on the strength
of evidence that the respondent had told people that the appellant to whom he was legally
married was not his wife and that child born to her was not his and the respondent was
charged under section 500 of the Penal Code. In this case, the imputations, Ma Yin Yin
Mya alleged, were false to the knowledge of Dr. Mya Thoung who had made them
knowing or having reason to believe that they will harm the reputation of Ma Yin Yin
Mya. It was held that the statement complained of which was made by the respondent on
practically no provocation whatsoever had made the witness who heard this statement
momentarily entertain suspicions against the character of the appellant the respondent has
to establish his good faith in order to get the protection of the ninth exception to section
499 of the Penal Code.
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In the case of U Ba Tin (applicant) v. U Sein Chaw (respondent), 1965, B.L.R

(CC). p- 1126, it was found that the complaint against the respondent made by the
applicant containing the allegations which tend to lower the respondent’s reputation. The
issue was to determine whether the applicant made them in good faith or not. According
to his cross-examination in subordinate courts, it was found that he made the complaints
with respect to the commission of the Bank Executives Association. Hence, it was
assumed that they were constituted in accordance with the direction of the applicant. So it
came to the conclusion that he did not carry out the proper inquiry about the respondent’s
conduct adequately since he made allegations only with the directions of the Bank
Executives Association. Due to the lack of proper care and attention, it could be assumed
that he did not have the ‘good faith’ in making the complaints against the defendant.
Therefore, in the absence of good faith, it was held that he could not claim the benefits of
the exceptions to the section 499 of the Penal Code.
So, the person defending with the term “good faith” has to establish as a fact that
he made enquiry before he made an imputation and has to give reasons and facts to
indicate that he acted with due care and attention. The accent is on the enquiry, care and
objective and not subjective satisfaction. In determining whether an accused person acted
in good faith under the exceptions, it is not possible to lay down any rigid rule or test. It
would be a question to be considered on the facts and circumstances of each case. The
burden of proof lies upon the accused to make evident that he acts in good faith in order
to entitle the benefits of the exceptions to the section 499 of the Penal Code.