Introduction
On the 27th of November the Association for freedom of thought and expression (AFTE) won a case in front of the Cairo administrative court ordering the cancellation of the National Telecommunication Regulatory Authority (NTRA) decree imposing restrictions on bulk mobile text messages. The decree stated that service providers and users should obtain an approval for the message content from relevant governmental bodies, including security authorities. The court ruling is an important victory for a number of rights and liberties, mostly the right to circulation of information, the right to know, right to communication and right to freedom of expression. It is the first ruling in the history of Egyptian judiciary that explicitly acknowledges the right if citizens to circulate and transfer information based on international conventions binding to Egypt. In view of the importance of legal principles established by the court ruling for all concerned with freedom of circulation of information and human rights defenders in general, AFTE presents this summary including the facts underlying the case, the court proceedings and the main legal principles included in the court’s final decision.
I. Facts
In the beginning of October 2010 NTRA, affiliated to the ministry of communication and information technology, issued an administrative decree ordering companies offering mobile bulk message services to obtain a license and companies offering individual sms services to obtain a permit. Conditions for obtaining both license and permit included some items that obliged those companies not to provide that service to their customers except after obtaining the approval of relevant governmental bodies including national security bodies regarding the content of the messages, as well as keeping customer information and their transactions and the content of their messages for a whole year and submitting them upon request to NTRA, its proxy or security authorities. The decree also allowed NTRA and security authorities to enter the premises of those companies to monitor their work.
The decree evoked concern among press institutions as well as civil society organizations, since many newspapers and media institutions depended for several years on bulk sms services in their distribution of urgent news and information. Also, a number of human rights organizations began using this technology lately in disseminating information related to their work, exposing human rights violations. This means of communication is also used otherwise, e.g. by parliamentary candidates to reach out to their constituencies to advocate their programs, or commercial companies to advertise their products etc. According to NTRA decree media, human rights and commercial bodies as well as individuals cannot use this service without prior governmental permission and approval of the content of the messages. Newspapers for example applied for the approval of the higher press council to send news via bulk sms to the public.
AFTE reviewed the mechanisms underlying bulk and individual sms, and parties involved in the process through a research of the communication organizing law no. 10/2003. It also undertook several visits to companies providing bulk sms services as well as communicated via phone with the three major mobile companies (Vodafone, Mobinil, Itesalat). AFTE identified four parties involved in the bulk sms service.
1- First parts: Major mobile phone companies that own the communication network in Egypt. Those companies are referred to as “operators” in the communication organizing law. Those companies do not provide the bulk sms service directly to the customers, but through smaller companies called “intermediate companies”.
2- Second party: Intermediate companies: Those companies contract the major communication companies to be able to provide bulk sms services. They also contract institutions and individuals who wish to send messages with a specific content to the public. The law describes them as “service providers”.
3- Third party: The user: This involves all bodies and individuals who want to send sms with a specific content to the public such as news, advertisements of certain products or promotion of certain ideas as well as different other kinds of information. This party is described in the law as “user”. To obtain this service the user signs a contract wit the intermediate companies, providing them with the content it wishes to distribute to the public, which the latter then undertakes.
4- Final customer: This refers to the public who receives the sms at the end. This party relates to the user, where he/she signs up for this special sms service with one of the newspapers, for example, to regularly receive the news published by that newspaper via sms.
AFTE had applied to several intermediate companies that provide this service to use bulk sms service in disseminating news of human rights violations related to the work of the association (i.e. police violence against university students, censorship of creative activities, right to know). Those companies requested that AFTE obtain approval of the higher press council considering that the content of our messages would be included under news.
AFTE requested the approval of the higher press council regarding the content of the messages. However the council refused claiming that it is only authorized to grant such permission to newspapers licensed by the council.
It became clear to AFTE that the real objective of the NTRA is to obstruct flow of information sent by independent press institutions and human rights organizations to the public as well monitoring the content of the messages, which constitutes a violation of the right to circulation of information and the right of the public to know without constraints.
II. Procedures
On 13 October 2010 AFTE filed the legal case 1430/65 in front of the administrative court against NTRA and the ministry of communication, requesting a halt of the implement and cancellation of the decree which obliges intermediate companies providing bulk sms services not to provide that service without prior approval of the content of the messages. Our plea entailed the cancellation of all forms of censorship and monitoring of the contents of bulk sms.
The court procedure extended over four sessions. AFTE submitted to court evidence of its nature as an Egyptian human rights organization defending victims of human rights violations in the fields of academic freedom, freedom of thought and creativity and the right to know. It also submitted its arguments in three memos exposing the violation by NTRA by imposing restrictions on bulk sms and requiring users and service providers to obtain approval for the content of the messages from governmental bodies. This, AFTE said, is a violation of article 19 of the Universal Declaration of Human Rights, article 19 of the International Covenant on Civil and Political Rights, article 13 of the International Covenant On Economic And Social Rights, UN General Assembly resolution no 59/1, 1946 regarding freedom of circulation of information, article 9 of the African Charter For Human And Peoples’ Rights, as well as the Egyptian constitution, which grants freedom of opinion and expression.
NTRA defense tam submitted a number of documents including the executive version of the decree, which includes three main documents:
1- executive decree for mobile phone companies regarding bulk sms
2- Permit format for companies providing individual sms service
3- License format for companies providing bulk sms services
It also submitted a single defense memo explaining the reasons for the issuance of such a decree, which, it claims, seeks to organize, and not restrict, the service.
In its session on the 27th of November 2010 the court ruled in favor of AFTE against NTRA.
III. The ruling and its main legal principles
Explanation of the ruling
The court ordered a cessation of the implementation of NTRA decree regarding subjecting short bulk sms to prior or subsequent monitoring by conditioning the provision of such service by licensed companies to obtain prior permits before providing the service. This entails cessation of implementation of all illegitimate provisions of the disputed decree in article 10 of the executive decree regarding sms service, which states that “The authority or its proxies by security bodies are entitled to access sites and premises of the company to monitor the licensed companies’ provision of sms service to mobile phone networks. It can also decide on executive measures and decisions according to the provisions of this license and communication law no. 10/2003 and any other sovereign regulations, rules or decrees“. Article 2 of the license to provide individual sms service states that “The second party – i.e. companies authorized to provide the service – must obtain from other official relevant bodies all legal and administrative permits necessary and relevant to those bodies in order to carry out it activities according to applied laws and regulations, including approval of NATR. It also should obtain all necessary approvals of the content of the messages subject to the license from other relvant official bodies before providing the service. Article 5 of the license agreement concerning individual sms states that “the second party – i.e. companies authorized to provide such service must prepare a database including all information and data concerning the service for which the license was granted, including content of the messages and their timing. Article 3-9 obliges the licensed company to obtain all necessary legal and administrative approvals regarding the content of the messages for which the license was obtained from other relevant official bodies before providing the service. Article 11-3 of the license agreement regarding bulk sms states that the license provider or its proxies is entitled during the period of the license to enter the sites and premises of the licensed companied to monitor the performance of the company in implementing the license. It can also define the appropriate executive procedures and take necessary decisions according to the provisions of this agreement and communication law 10/2003 as well as any other rules, regulations or other sovereign decisions. Article 18-1 of the license agreement for bulk sms states that this license does not exempt the licensee from obtaining from other relevant official bodies all the necessary legal and administrative approvals that fall within their jurisdiction, in order to carry out the activity according to existing laws and regulations, including approvals obtained from national security bodies.
Legal foundation of the ruling
The court concluded that the legal status of AFTE, being a civil institution that addresses public concerns in the field of human rights, its affiliated members who use the communication service, subject to the disputed decree, which is based on the right to use frequency spectrum and right to communication, is affected by the content and substance of the NTRA decree both as regards its organization of bulk sms services or procedures of service provision. The court considered that the decree violates AFTE’s rights in the following aspects:
1- Right to know: The court believes that this decree violates the right to know as on of the basic human rights, closely linked to the right to information, the right to development and the right to life. In that regard, the court said: The right to know is not an accessory right for pure knowledge without a positive stance expressing the end of stating the right; the right to know is closely linked to another right, namely the right to information flow and circulation, both of which are linked to a wider and more comprehensive right which is the right to development, mentioned in article 1 of the international covenant on civil and political rights, article one of the declaration on the right to development endorsed in UN general assembly resolution 41/128 on the 4th of December 1986, which in turn is closely linked to the right to life as well as the right to build a well founded, Subsequent to the close link between communication services, including bulk sms service and the right to flow and circulation of information, we state the following:
a- the right to circulation of information is linked to two basic human rights, the first is the right to expression and the second is the right to know. The freedom to circulate information constitutes the main source of all forms of freedom of opinion. A person’s right to freedom of opinion and expression includes the right to receive information and ideas and transferring them to others with no regard to borders, through all means of expression and media or any other means for transfer, dissemination and circulation of information. Without the ability to receive information and enjoying the right to circulate it and exchange it with the public, freedom of opinion would be of no real meaning for society.
b- Freedom of expression and circulation of information is not restricted except by some legitimate legislative restrictions such as advocating war or hatred or racism or national or religious fanaticism according to the provisions of article (20) of the international covenant on civil and political rights and article 4 of the international convention against all forms of racial discrimination as well as wars, armed conflicts, declaration of general state of emergency and requirements of national security and public order as well as respect of rights and freedoms of others.
c- The right to flow and circulation of information has a dual nature. On the one hand it imposes a negative commitment in the sense of the administrative body’s commitment not to undertake any legislative or administrative measures to obstruct free flow of news and information whether inside or from outside the country. Hence the state should not impose any obstacles against flow of information nor allow monopoly of information or prevent its dissemination except within the boundaries of maintaining public order. On the other hand it imposes a positive commitment in the sense of the state’s obligation to widely disseminate key information related to public interest to ensure transparency and supervision of the performance of public authorities.
d- The right to flow and circulation of information needs a cultural and media environment that permits exchange of information and knowledge in all its forms and types through a scientific and cultural discourse in its different aspects. This should be made available without imposing obstacles that impede the development of such an environment.
c- The infinite space had become a homeland built by electronic communication networks, produced by fiber optics, transferred by electromagnetic waves. Hence the timely availability of information in appropriate form for decision makers is the foundation for the decision making process. It has also become one of the criteria used to measure quality of decisions, since IT has become one of the main and important tools of exchange and circulation of information. Consequently the use of different IT technologies is inevitable for the timely provision of information, through unconventional methods, not only for decision makers, but also for each citizen, being an essential basic right.
The court also based its decision on several international treaties in its attempt to provide evidence in favor of freedom of circulation of information and freedom of expression as basic human rights. In that regard it said:
“The Universal Declaration of Human Rights” approved by the UN General Assembly stressed the importance of that right. Article 19 of the Declaration states that:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
This was followed by UN resolution (59) on the 14th of November 1946 stating that “the right to circulation of information is a basic human right and an indicator of all other liberties which the UN is committed to protect”.
2. Freedom of expression. The court considered the decree to restrict freedom of expression. In that regard it said:
“Freedom of expression and the interaction of opinions that develops thereof should not be restrained by chains that prevent its exercise, whether by imposing constraints that precede their dissemination or by imposing subsequent punishment that seeks to oppress them. Citizens should be able to publicly express their ideas and not conceal them and whisper them in fear even if they are met by objection from public authorities, since those ideas could lead to a desired change. Facts should not be hidden. There is no way to access facts in the absence of freedom of expression.
3. Right to communication: the court concluded that this decree violates the right to communication as basic human rights, stating:
The right to communication, as a basic human need and essential for every social citizen is a right for individuals as well as societies consisting of those individuals. It is a right that cannot be exercised without the necessary tools. It entails the right to benefit and share for all individuals, groups and organizations, irrespective of their social, economic or cultural status, and irrespective of gender, language, religion or geographical location to benefit from communication means and services and information resources in a balanced way, as well as achieve the highest level of public participation in the process of communication, to the effect that the role of individuals and social groups is not limited to the receiver end of media channels, but extends into active participation. The right to communication also entails the right of the individual to receive information, knowledge and to be exposed to the experiences of others, as well as the right to expression and communicate the truth to others, communicate and discuss with them and influence social and political leaders in the service of the individual and the collective.”
The court added:
Since the right to communication is closely linked to the charter of human rights and citizen declared by the French revolution in 1989, where article 11 of the mentioned declaration stated that “the freedom of exchange of ideas and opinions is an important human right. Every citizen has the right to speak and publish freely.
