Chapter II: How do we read the judgment?
“The Court, in view of the above, is aware that this judiciary is not only to confront circumstances in the present, but rather to deter, correct and warn those sites and anyone who wishes to tamper with religious and spiritual beliefs and constants of the Egyptian people, in order to provoke hatred and animosity among the people., with a view to cause divisions into conflicting parties and factions”
From terms of the ruling of the Supreme Administrative Court regarding the blocking of “YouTube”
The reasons for the ruling of the Administrative Court of Justice in February 2013 as well as the reasons for the ruling of the Supreme Administrative Court reveal efforts by the two judicial bodies to find an acceptable legal basis and justification that can be used to conceal the conservative moral motive, which is the source of YouTube blocking judgment and other links and sites that display the abusive film (unspecified in terms of judgment).
The court used controversial and vague legal provisions such as Article 67 of the Egyptian Telecommunications Regulatory Act. The Court also used some of the texts of international instruments signed by Egypt and became part of its national legislation, such as Article 19 of the International Covenant on Civil and Political Rights, which provides an aesthetic character to a provision that clearly violates rights protected by the provisions of the Egyptian Constitution.
The Court tried from the outset to examine how to justify restrictions on freedom of expression and was able to find it in article 19 of the International Covenant on Civil and Political Rights – one of the most conservative and reactive articles of the International Covenant – which allow states to impose constraints on some rights and freedoms protected by the covenant, on condition that those restrictions be “specific” and “necessary” for the respect of others and their reputation or for the protection of national security, public order, public health or morality. Thus, the Court created a legal case in which a legal rule exists that provides for the possibility of imposing a restriction on freedom of communication and freedom of expression, with a necessary situation requiring the implementation of this provision, providing the aim is protecting national security, public order, public health or morals.
Based on these premises, the Court relied on the text of article 67 of the Telecommunications Regulatory Act, which allows the competent authorities of the State to subject to its management all telecommunications services and networks in the event of a natural or environmental disaster or in cases where public mobilization and any other cases related to national security. The Court relied on the text even though it addresses specific exceptional situations that did not apply, nor were they related to the merits of the case. The text did not expressly mention the possibility of measures that would impose restrictions on freedom of communication, such as “blocking”, and the term “subjecting to its administration” is vague. The court also relied on other provisions of the Telecommunications Law that have no connection with the merits of the case. The text merely gives some powers, some of which are related to national security. The court took this to mean that the authorities have the right to block websites.
The Court sought to strengthen the text of article 67 by trying to portray the incident as beyond the scope of protection relating to freedom of expression and freedom of communication. The Court established that this was not the freedom of expression governed by the “theory of liberty”, which was based on the right to know as a natural right and is not subject to censorship or restriction of any kind, and subsequently the right of the individual to establish newspapers and satellite channels without a license or permit, but is rather governed by the theory of “social responsibility,” which is the theory that challenges the theory of freedom, which means, according to the Court, that all forms of media have a responsibility, which is a right, duty and responsibility at the same time as well as commitment to objectivity and true information.
Thus, the ruling concluded that both Article 67 of the Telecommunications Regulatory Act and Article 19 of the ICCPR provided a legal basis for the Egyptian authorities to take action to infringe on freedom of expression “blocking YouTube site and abusive links” and that these authorities violated this rule when failing to take action it should have taken (the blocking).
The importance of this ruling is that it takes a new course in violation of the provisions of various degrees of administrative courts in relation to cases of blocking / closing sites. The number of such cases has increased recently, especially those relating to the blocking of social networking sites. Contrary to the ruling we are currently dealing with, most of the administrative courts circuits have rejected most of these cases, indicating that the court’s ruling came to diverge from the course usually taken by administrative courts. In a subsequent ruling on the YouTube case, the second chamber of the Administrative Court in 2015 issued a ruling rejecting a lawsuit demanding the banning of Facebook. The ruling discussed the importance of social networking sites. The court said: “The decline by the administration (i.e. the state) to close Facebook does not constitute a negative decision within the meaning of the Law of the Council of State promulgated by Act No. 47 of 1972, so that the case lacks an administrative decision that can be challenged.
The court pointed out that the self-censorship of users of social networking sites is the most effective way to remedy some of the practices of the users of these sites who diverge from the norm, “and this self-censorship only applies to responsible freedom, which glows in self-protection in order to prevent those who prey on public freedoms.” It stressed that the press and audiovisual media have a basic duty to raise the quality of media service and the fullest expression of the basic social and cultural needs of the people, which could affect it either positively or negatively. Individuals are attracted to the highest quality media and the ones that are most able to express his needs. In response to some of the “Facebook” pages that showed irregularities, the court recommended that the ideal solution in those cases is to hold their owners accountable.
The Supreme Administrative Judgment issued in May 2018, which supported the ruling of the Administrative Court of Justice in February 2013 banning YouTube for a month, opens the door for administrative courts to rely on the court’s interpretation and establishes the precedence of site blocking judgments. The ruling also supports, theoretically, the blocks undertaken by Egyptian authorities during the previous two years.