Prepared by: The Research Unit of the Association for Freedom of Thought and Expression (AFTE)
Content
Methodology
Executive summary
Introduction
- First: Map of the laws restricting the circulation of information
- Second: The culture of secrecy between custodial penalties and fines
Conclusion and recommendations
Methodology
The paper is based on a reading and analysis of successive laws throughout the history of Egypt that restrict freedom of information. These laws mainly include Law No. 20 of 1936 regarding publications and publishing, Law No. 356 of 1954 regarding the establishment of the National Archives of Egypt, and Law No. 121 of 1975 on preserving the state’s official documents and regulating their publication. The paper is also based on Penal Code No. 58 of 1937 with its various amendments, Civil Service Law No. 81 of 2016, and the Press and Media Regulation Law No. 180 of 2018.
The paper also relies on Presidential Decree No. 472 of 1979 on preserving the state’s official documents and regulating their publication, in addition to interviews with a female employee at one of the ministries and a legal researcher interested in the right to freedom of information. The paper aims to review the laws that restrict the circulation of information within the Egyptian legislative structure. It highlights the need to make extensive legislative amendments in this regard, along with passing a law for the circulation of information in Egypt.
Executive summary
No laws on the circulation of information was issued over the past ten years. Yet, there are still several laws that restrict freedom of information. These laws must be discussed and reviewed, as they contradict freedom of information. This should come as part of the process of issuing a law on the circulation of information.
The paper reviews several Egyptian laws that restrict freedom of information, in an attempt to understand the political context in which these laws were passed. These laws prohibit the circulation of information by setting restrictive texts and bureaucratic procedures without guarantees, which leads to the fact that the principle is to withhold information, and the exception is for state institutions to disclose it. There are many examples in this regard, such as expanding publication bans, preventing the circulation of publications, and exercising censorship on the internet. These laws, moreover, impose custodial penalties on citizens, especially public sector workers.
Introduction
“Access to information, data, statistics and documents, and the disclosure and circulation thereof, is a right guaranteed by the state to all citizens, on the condition that this does not violate the sanctity of private life or the rights of others, and that it does not conflict with national security. The law regulates the rules for depositing and archiving public documents, the means to access information, appeals against a refusal to disclose information, and the consequent accountability for refusing to disclose information.”
Article 47 of Egypt’s 2012 constitution
Since the beginning of the Covid-19 pandemic, the talk about the importance of the circulation of information has become clearer, especially regarding the right to health and life. Access to, dissemination and circulation of information are important for individuals to express their opinions, monitor the government performance and hold it accountable. Transparent circulation of information ensures an effective participation by citizens in decision-making and projects that may directly affect their lives.[1]
Prior to the 25 January 2011 revolution, the right to circulate information was not directly stipulated in the Egyptian constitution, but rather indirectly in Article 47 of the 1971 constitution, which stipulated the right to freedom of expression.
Article 47 of the 2012 constitution was changed to Article 68 of the 2014 constitution, which states: “Information, data, statistics and official documents are owned by the people. Disclosure thereof from various sources is a right guaranteed by the state to all citizens. The state shall provide and make them available to citizens transparently. The law shall regulate rules for obtaining such, rules of availability and confidentiality, rules for depositing and preserving such, and lodging complaints against refusals to grant access thereto. The law shall also specify penalties for withholding information or deliberately providing false information. State institutions shall deposit official documents with the National Library and Archives once they are no longer in use. They shall also protect them, secure them from loss or damage, and restore and digitize them using all modern means and tools, as per the law.”
Therefore, the articles of the 2012 constitution, which were amended in 2014, came as a positive addition in terms of the right to circulation of and access to information. However, none of these articles has been translated into actions on the ground, as no law on freedom of information has been issued since the 25 January revolution, amid lack of transparency, rampant culture of secrecy that plagues the work of all state sectors, and restriction of access to information.
The Cabinet’s Information and Decision Support Center (IDSC) tried in 2011 to issue a draft law on the circulation of information. Then, some civil society organizations, including AFTE, suggested a draft law in 2012. Other draft laws were proposed later by some ministries and state institutions, such as the Ministry of Communications and Information, the Ministry of Justice, and the Supreme Council for Media Regulation (SCMR). The official draft laws were shrouded in secrecy, as no one from the various segments of society, experts, or civil society organizations took part in the drafting process.
Meanwhile, there are at least 11 laws that restrict and criminalize the circulation of information. They restrict the work of journalists, which is essentially based on publishing and circulating information. They also ban public sector workers from circulating information on the grounds of confidentiality.
First: Map of the laws restricting the circulation of information
“Following the emergence of the last movement – meaning the Free Officers Movement – the government felt the need for a body that controls guidance, direction and advocacy, and its goal is take over national guidance, combat social defects, and disseminate correct ideas and information at home and abroad.”
Explanatory memorandum to Law No. 270 of 1952 regarding the establishment of the Ministry of National Guidance
We took the law on the establishment of the Ministry of National Guidance as a starting point for the paper, as the explanatory memorandum to the law stated that the ministry’s goal was to control information and disseminate what it wanted to publish. This law was followed by Law No. 356 of 1954 on the establishment of the National Archives of Egypt, which in turn was affiliated with the Ministry of National Guidance at that time, in addition to other laws that followed the same pattern in dealing with and circulating information, which we will mention in this paper. The Ministry of National Guidance was later divided into the Ministries of Culture and Information, which played a pivotal role in the circulation of information.
Despite taking the law on the establishment of the Ministry of National Guidance as a starting point for reviewing the laws that restrict the circulation of information, Law No. 20 of 1936 regarding the circulation of publications is considered the legislative nucleus on which laws restricting the circulation of information were based.
By tracing the laws that restrict the right to freedom of information, and trying to access the political/social contexts in which they were issued, it becomes clear that the restriction of circulation of information dates back to the British occupation period when the Publications Law No. 20 of 1936 was issued. However, the pivotal/crucial period with regard to the circulation of information and the consolidation of the culture of secrecy was the 1950s – under the rule of late President Gamal Abdel-Nasser – during which most of the laws tackled in this paper were issued.
The period from the late 1990s until now is a turning point, during which the laws aimed to control the internet and impose tight censorship on it. The aforementioned laws were issued in a specific political and social context in response to an urgent need at the time, such as a state of war or political turmoil. But those laws have not been amended to keep pace with the new developments and the prevailing global trend regarding the expansion in dissemination and circulation of information.
In order to achieve freedom of information in Egypt, we face many obstacles, starting with the lack of a law obligating state agencies to allow proactive dissemination of information. There is also a need to raise public awareness about the importance of information circulation and the steps required to access information. Furthermore, some laws need to be amended as they clearly contradict the most basic principles of freedom of information.
Some of the laws that are still in force until the present time contradict freedom of information in one way or another. These laws entail two types of control over the circulation and dissemination of information, namely procedural control and objective control.
Yet, there is an exception, which Sary Hanafy talked about when introducing the Italian philosopher Giorgio Agamben’s book “The State of Exception”, which is the exception of bureaucracy, “that is, when society is more governed by bureaucracy than by regulations and laws”[2]. This can apply to the strict and bureaucratic procedures required for the dissemination and circulation of information. Below we review a number of Egyptian laws that pose a real obstacle to the circulation of information:
1- Documents not available to the public:
“It was noticed that Egypt’s national documents are scattered in several places. The original documents of laws and decrees are never sent to the National Archives in Al-Qal’ah neighbourhood, but remain at the Council of Ministers and institutes. Some of the documents related to the negotiations conducted by Egypt are kept at the Ministry of Foreign Affairs and some at the Council of Ministers. Some of Egypt’s historical documents – since the era of Muhammad Ali – were handed over to the historical department of the Gomhouria Palace, and others are kept in a separate place. It was not easy to access them during the era of the monarchy, except through very difficult procedures. It is time to collect all these documents in one place, arrange them in a scientific way, facilitate search in them and access to them, publish what is decided to be published from them, and disseminate the facts they contain to the public. That is why the law stipulated the establishment of the National Archives and stipulated in its first article that it is affiliated with the Ministry of National Guidance, because its mission is attached to that of the ministry, which is concerned with disseminating facts to the public. The National Archives is a storehouse of historical facts, and therefore its natural place is where this law placed it.”
Explanatory memorandum to Law No. 356 of 1954 regarding the establishment of the National Archives
Although the explanatory memorandum states clearly that the goal of the National Archives is to disseminate facts to the public and to facilitate search and access to them, the law restricts the right to access due to ambiguity regarding the procedures required for viewing and searching the documents kept at the National Archives. Therefore, citizens do not know where to go if their request for access is rejected. They also do not know who has the authority to refuse, or even what the criteria for rejection or approval are.
In addition to the vague procedures stated in the law, the way the documents are classified is also vague, as some of these documents are treated under Article 2 of the Antiquities Protection Law, which allows access to and study of the documents “without prejudice to the provisions of Law No. 215 of 1951 – the aforementioned Antiquities Protection Law”.
In light of the possibility that some documents can actually be classified as a type of antiquities, such as papyrus, this has become a helpful factor in dealing with most documents as antiquities at the present time. The National Archives employees are now acting as per that principle, according to a researcher who worked with the National Archives.
After Egypt signed the second disengagement agreement with Israel in September 1975, in which late President Sadat implicitly ended the state of war with Israel[3], Law No. 121 of 1975 was issued. It stipulated in its first article the right of the President of the Republic to establish a system for preserving the state’s official documents, with the possibility of a ban on publishing some of them for up to 50 years.[4]
So, the law was issued in the context of signing the Camp David Accord, which faced popular rejection at the local and Arab levels. Four years later, President Sadat issued Decree No. 472 of 1979 on preserving the state’s official documents and regulating their publication, which stipulated:
“Documents and correspondence related to the supreme policies of the state or national security are considered confidential and may not be published or broadcast in whole or in part, nor may they be circulated or accessed except by those whose work nature requires that, unless the constitution or the law stipulate that these document and correspondence should be published immediately upon their issuance.”
This confirms the continuation of the same pattern with regard to the circulation and dissemination of information, and the public’s access to it, especially after adding more ambiguity to the law, with regard to the timescale during which information could be published or circulated. The law, moreover, does not provide a definition for “national security and the supreme policies of the state”. It is also unclear to whom complaints should be submitted in this regard.
2- Circulation of publications:
“No one may sell or distribute publications in the streets or any other public places, even if it is on an occasional or temporary basis, without obtaining permission from the Ministry of Interior.”
Article 7 of Law No. 20 of 1936 on the circulation of publications
Law No. 20 of 1936 on the circulation of publications can be considered one of the first laws restricting the circulation of information in Egypt. It was issued amid the success of demonstrations that called for revoking the 1930 constitution, which was newly issued at the time under pressure from the British occupation, and reinstating the 1923 constitution, which provided for basic rights such as freedom of expression that was neglected in the 1930 constitution[5]. However, the law restricted the circulation, sale and display of publications by allowing the Ministry of Interior to have central control over the movement of publications and publishing. Article 5 of the law[6] stipulated that ten copies of any publication should be deposited at the directorate to which it belongs.
Article 10 also states that the Council of Ministers may ban the circulation in Egypt of provocative publications as well as publications that deal with religions in a way that disturbs public peace. This adds further restrictions on the circulation of information, using unclear terms such as dealing with religions.
Although the law was issued in a political context completely different from the current situation, and was amended during the tripartite aggression against Egypt in 1956, it is still in force until the present time, without trying to reconsider it.
3- Publication ban decisions:
“Journalists shall reserve the right to access information, statistical information, and news items made available and accessible according to applicable laws, from both public and/or government sources. Journalists may publish such news items and information that they obtain.”
Article 8 of Law No. 96 of 1996
The Press Regulation Law No. 96 of 1996 and Article 10[7] of Law No. 180 of 2018 have granted journalists the right to access information. However, this right remains fictitious due to the presence of other laws that conflict with their right to obtain and disseminate information, thus restricting the circulation of information on a wide public level.
The decisions to ban publication come as a main factor in restricting the circulation of information. Article 11 of the Press and Media Regulation Law No. 180 of 2018 states: “With due regard to the provisions of Articles 9 and 10 of this law, a journalist or a media person has the right to receive an answer to the information, data and news they inquire about, unless such information, data or news is confidential by nature or in accordance with the law.” The law restricts the journalists’ right to circulate information if it is confidential by nature, which is ambiguous, especially with the absence of a law that defines confidential information and classifies the degree of confidentiality of that information, as well as the period of time during which such information must remain confidential before disclosing it.
The publication ban decisions issued by the investigative authorities or courts pose a major obstacle to the work of journalists, especially in light of the “ambiguity surrounding these decisions, due to the lack of details within the law”. The bodies that issue such decisions have absolute discretionary powers. There are no specific cases for issuing such decisions, and there is no specific timeframe for them. One cannot even appeal against such decisions[8], as they are judicial and cannot be appealed. This means that there are insufficient guarantees for the right of journalists and citizens in general to access information.
4- Emergency Law:
“The President of the Republic, when a state of emergency is declared, may take appropriate measures to maintain security and public order. In particular, he may:
(2) Order the surveillance of messages of any kind, and the monitoring of newspapers, bulletins, publications, editorials, drawings, and all means of expression, publicity and advertisement before they are published, and their seizure, confiscation, disruption, and closure of their places of publication, provided that the censorship over newspapers, publications, and mass media shall be limited to matters related to public safety or national security purposes.”
Article 3 of Emergency Law No. 162 of 1958
Despite the fact that the Emergency Law is an exceptional law, it has become part of the Egyptian legislative structure due to its continued application without interruption, except for the period from 2012 to 2017, when the state of emergency was declared in April 2017 and had since been extended without interruption until it was lifted in October this year. Article 3 of the Emergency Law stipulated censorship on newspapers, publications, and all means of expression and advertisement. In the context of the June 1967 defeat, Republican Order No. 1 of 1967 was based on that article. At the time, general censorship was imposed across the country on writings, publications, photographs and the parcels sent to or from Egypt or circulated inside the country, as well as all wired and wireless telegraphic and telephonic messages and all news, information or other materials intended for radio broadcasting[9]. This can be repeated as long as the law can be renewed at any time.
5- Blocking websites as a practice to restrict the circulation of information:
In light of the existence of the Telecommunication Regulation Law No. 10 of 2003 and the centralization of the internet infrastructure, as well as the centralization of the management of the entire telecommunications system, as we mentioned in the first part of the “Internet and Law Series” issued by AFTE[10], it is easy to impose surveillance and monitoring on internet users, thus restricting the circulation of information.
When blogs first emerged in Egypt, the authorities began to pay attention to the importance and effectiveness of these blogs as a means of political mobilization. This increased the authorities’ attention to the internet in general, leading them to pursue bloggers and try to control the cyberspace through new laws such as the draft law regulating video and audio broadcasting in the aftermath of the 6 April 2008 events. The draft law did not come into force at the time.
In the aftermath of the 25 January 2011 revolution, online content, such as photos of protesters, was deleted or filtered. Later, telecommunications and internet services were cut off across the country[11]. Then, the authorities tried again to control the power of the internet, as the then ruling party – the Freedom and Justice Party – announced a draft law to combat cybercrime, which also did not come into force.[12]
The 2015-2020 parliament paid due attention to the control and monitoring of the internet. In parallel, the authorities began a wide wave of blocking websites in 2017, followed by the issuance of a number of laws that legalize the blocking of websites. These included Law No. 175 of 2018 on Combating Information Technology Crimes and the Press and Media Regulation Law No. 180 of 2018.
The blocking of websites, especially news websites, is a kind of restriction of the circulation of information. It comes amid the increased use of the internet as an alternative means to access information, especially as the government is closing all possible windows to access information.
In the first part of this paper, we discussed the laws that allow the blocking of websites, deprive the public of access to official documents, and restrict the circulation of publications, as well as the publication ban decisions. In the second part, we will discuss the penalties imposed on citizens in general, and on public sector employees in particular, in case any information related to the government work is published or circulated.
Second: The culture of secrecy between custodial penalties and fines:
Violation of the aforementioned laws results in the imposition of custodial penalties and fines on citizens in general and journalists and public sector employees in particular, as follows:
1- Employees:
A female government employee said in an interview with AFTE: “Everything is always considered a top secret and cannot be circulated. I am an engineer in the ministry that has lots of information about… but I do not have the authority to access that information. They prevent me from obtaining that information without prior permission from my manager. If that information is made available to everyone, it could be circulated and therefore cause alarm in the media, and they do not want this to happen.”
Thus, the culture of secrecy that taints the work of all state institutions has a negative impact on the employees’ performance. This culture has been entrenched in government institutions by a number of laws that punish employees for any attempt to provide information about the nature of their work in any way. These include Article 75 of Law No. 210 of 1951, which states: “Employees may not provide information or clarifications about issues that should remain confidential in nature or pursuant to special instructions. Confidentiality shall remain in place even after the employees leave their jobs.”
These also include Article 56 of Law No. 46 of 1964[13], Article 53 of Law No. 58 of 1971, Article 77 of Law No. 47 of 1978[14], and the current Civil Service Law No. 81 of 2016.
Article 150 of Executive Regulations No. 1216 of 2017 of Civil Service Law No. 81 of 2016 stipulates, among others, that employees may not:
(1) Disclose any information that they become acquainted with by virtue of their position, if that information is confidential in nature or pursuant to instructions, without written permission from the relevant manager, and this obligation shall remain in place even after the employees leave the service.
(7) Make any remarks or statements about their work through newspapers or other means of publication, unless they are authorized in writing by the relevant manager to do so.
(8) Disclose matters that they become acquainted with by virtue of their position if these matters are confidential in nature or pursuant to instructions, and this obligation of secrecy shall remain in place even after the employees leave the service.
Thus, employees shall be punished if they disclose information about their work, as public servants are obliged by law to keep secret all the activities and works that are secret in nature or pursuant to instructions.[15]
Despite the changes and amendments introduced to the civil service laws from 1951 to 2016, the wording of this article has not changed. Rather, some details have been added to it that increase restrictions on the circulation of information.
In the same context, Law No. 12 of 1999 amending some provisions of Law No. 87 of 1960 regarding public mobilization in Articles 35 and 36 punishes workers if they disclose secrets related to the state’s administrative apparatus, individuals, public or private sector companies.[16]
2- Punishment of journalists and citizens:
“The draft law comes in light of the state’s consistent steps to amend its laws in line with the current circumstances and the new reality. The most dangerous thing the state is facing at this stage is the wave of new crimes, which necessitated making the amendment in order to keep pace with the new circumstances, the most prominent of which are the crimes that harm the security of the state. Moreover, wars in the modern era have taken forms and methods that did not exist in the past. This development resulted in the emergence of criminal acts that have not been known before, which requires the state to defend itself against these acts. Therefore, the steps taken by the state against any danger that may come from outside or any incitement against it from inside must be preserved.”
Explanatory memorandum to the draft law on tightening penalties for collecting information on military personnel “by replacing the text of paragraph (a) of Article 80”.
On 23 October this year, the House of Representatives approved an amendment to Article 80 (a) of the Penal Code regarding the tightening of penalties for collecting information and data related to the armed forces or their current or former personnel. This came as an addition to a huge number of laws that prohibit the publication of a number of topics, most notably “the activities of the military and security agencies”. These include Law No. 313 of 1956, which stated the following in its explanatory memorandum:
“The army’s formations, equipment and personnel are of great importance in terms of the security and safety of the state at home and abroad, which necessitates that they should always be surrounded by a fence of complete secrecy, preventing the leakage of any information about them to parties that would use that information to undermine the country’s interests. This importance has doubled at the present time, especially in view of the armed forces’ involvement in the defense of Arab countries as well as the defense of Egypt against common enemies. So, it has become necessary to make the publication or broadcast of any news about the army, its formations, movements, equipment and everything related to the military and strategic aspects in general dependent on obtaining the approval of the general command of the armed forces in its capacity as the competent authority that can assess whether what would be published or broadcast would harm the military interests. This law has been drafted to achieve these goals.”
Law No. 313 of 1965 was amended by Law No. 14 of 1967 regarding the prohibition of publishing any news about the armed forces, whose explanatory memorandum emphasized the importance of information related to the army, and the need to keep it confidential. This came despite Law 313 of 1965 was abolished and replaced with Article (85) of the Penal Code, which states:
“The following shall be considered a secret of the defense:
- Military, political, diplomatic, economic and industrial information which by virtue of its nature is only known by persons who are qualified for that, and considering the interest of the country’s defense such information shall remain secret to others than those persons.
- Objects, correspondence, written documents, instruments, drawings, maps, designs, pictures and other objects which in the interest of the country’s defense shall be kept unknown except to those who are assigned their maintenance and use, and which shall remain secret to anyone else, lest this should divulge information of all that is referred to in the previous clause.
- News and information related to the armed forces, their formations, movements, ordnance, provision and personnel, and in general all that is related to military and strategic affairs in respect of which no written permission is issued by the general command of the armed forces to publish or diffuse it.”
Although the law was repealed by Law No. 112 of 1957, an amendment was issued in 1967 to the repealed law, which contradicts the legal rule that says “the revoked shall not return”.
The General Intelligence Law No. 100 of 1971 considers everything related to the General Intelligence Service as a secret. The status of confidentiality is not removed from such information even if it was revealed several times before. Such information does not fall under military plans and formations only, but also includes any information that may be related to the military or the intelligence service. One the most famous examples in this regard is the case of Ahmed Hassan Bassiouny, who created a Facebook page called the “Recruitment and Mobilization Department in the Arab Republic of Egypt” to answer young people’s questions regarding application dates and exemption conditions. He was summoned by the Military Intelligence and accused by the Military Prosecution of divulging one of the country’s defense secrets.
In 2019, a military court sentenced director of Tanmiya (development) Library Khaled Lotfy to five years in prison for “disclosing military secrets”. This came after he published an Egyptian edition of the novel “The Angel”, despite it being published in many other countries.
Article 171 of Penal Code No. 58 of 1937, as amended by Law No. 141 of 2020, states: “Anyone who induces one or more persons to commit a felony or misdemeanor, by talk, shouting in public, a deed, or a hint insinuated in public, by writing, drawing, pictures, photographs and symbols, or any other method of representation made in public, or in any other means of publicness, shall be considered an accomplice in committing it, and shall be punished with the penalty prescribed therefor, if such inducement results in actual occurrence of the felony or the misdemeanor. However, if the inducement results in just an attempt of crime, the judge shall apply the legal provisions on attempt penalty. Talk or shouting shall be considered publicly made if it is declared openly or reiterated via any mechanical method at a general meeting, on a public road or any other frequented place, or if it is declared openly or reiterated such that anyone found on that road or in that place can hear it, or if it is diffused by wireless or any other method. The deed or hint shall be considered publicly made if it takes place at a general meeting, on a public road, or at any other frequented place, or if it takes place such that whoever is found on that road or at that place can see it. Writing, drawings, pictures, photographs, symbols and other representation methods shall be considered as publicly displayed if they are distributed without differentiation to a number of people, or if they are displayed such that whoever is found on a public road or at any frequented place can see them, or if they are sold or offered for sale at any place.”
Article 174 of the Penal Code[17] considers incitement to overthrow the regime through one of the methods mentioned in Article 171 of the law, which include writing, drawings and pictures, as a crime punishable by imprisonment for a maximum of five years and a fine ranging from 5,000 to 10,000 thousand pounds. This does not only restrict freedom of expression, but also restricts freedom of information, especially as the punishable acts can apply to many cases and matters. Article 178 (bis) of the same law stipulates a fine ranging from 10,000 to 30,000 pounds against “anyone who publishes, manufactures, or possesses with the intention of trading, distributing, renting, pasting or displaying false images that may harm the country’s reputation”.[18]
By reviewing the penalties that may apply to those who circulate or disclose “confidential” information, especially that related to national security, whether they are public servants, journalists or citizens, we notice confusion between the terms and the use of “national security” as a means of concealing information, restricting its circulation, and even prosecuting whoever tries to circulate it.
The law does not give a specific and clear definition of the term “national security”. Also, there is no law that classifies information according to the categories of confidentiality (secret – top secret – prohibited). Restriction of the circulation of information must be justified[19], as the Tshwane Principles and the Johannesburg Principles on National Security, Freedom of Expression and Access to Information[20] provide for an appropriate balance between disclosure and withholding of information.[21]
Conclusion and recommendations
”National security and the public’s right to know are often viewed as pulling in opposite directions. While there is at times a tension between a government’s desire to keep information secret on national security grounds and the public’s right to information held by public authorities, a clear-eyed review of recent history suggests that legitimate national security interests are, in practice, best protected when the public is well informed about the state’s activities, including those undertaken to protect national security.”
The Global Principles on National Security and The Right to Information (Tshwane)
Within the framework of the growing global concern regarding the right to information, the Global Principles on National Security and The Right to Information (Tshwane) were developed in June 2013 to review the laws or provisions relating to the state’s authority to withhold information on national security grounds or to punish the disclosure of such information[22]. This must be taken into consideration when drafting a law on the circulation of information in Egypt.
After reviewing the laws restricting the circulation of information in Egypt, AFTE sees that it is necessary to introduce extensive amendments to these laws. It also calls for expediting the issuance of a law on the circulation of information. Accordingly, AFTE recommends the following:
- Annulling Law No. 121 of 1975 regarding the preservation of the state’s official documents, which considers documents and correspondence related to the supreme policies of the state or national security are considered confidential and may not be published or broadcast in whole or in part, nor may they be circulated or accessed except by those whose work nature requires that.
- Annulling Presidential Decree No. 472 of 1979 regarding the preservation of the state’s official documents
- Amending Law No. 356 of 1956 regarding the establishment of the National Archives in line with the right to know and circulate information, by abolishing the affiliation of the National Archives’ content in general to the Ministry of Antiquities. There should be a classification of documents that might fall under the umbrella of antiquities, such as papyrus. The public should be allowed access to historical documents, through a number of clear and specific procedures to be defined in the expected information circulation law. Requests to view documents should be considered by an independent body, such as the Information Commission.
- Repealing Law No. 313 of 1956, which was amended in 1967 although it was previously revoked by Law No. 112 of 1957, something which contradicts the legal rule that says “the revoked shall not return”.
- Cancelling Law No. 175 of 2018 on combating information technology crimes due to its hostility to one of the most important information circulation media, which is the internet.
- Amending Article 11 of the Press and Media Regulation Law No. 180 of 2018 in a way that enables journalists to access information in accordance with specific and clear rules and mechanisms away from broad terms, such as “information that is confidential in nature”.
- Revoking the Publications Circulation Law No. 20 of 1936, as it imposes restrictions on the circulation and display of publications by granting the Ministry of Interior the right to have central control over publications and publishing.
[1] Applied knowledge services. "Access to information and its constraints". August 2011. Accessed on August 2021. link: https://gsdrc.org/topic-guides/communication-and-governance/access-to-information-and-its-constraints/ [2] Giorgio Agamben, "The State of Exception", (Madarat for Research and Publishing: Cairo, p. 28) [3] Galal Amin, "What Happened to Culture in Egypt", (Dar al-Karma: Cairo, 2019), pp. 49 and beyond [4] Article 1 of Law No. 121 of 1975: “The President of the Republic, by a decision from him, shall set a system for preserving the state’s official documents and papers. This system shall show the method of publishing and using official documents and papers related to the supreme policies of the state or national security, which the constitution or law does not provide for their publication upon issuance or endorsement. This system may include a provision prohibiting the publication of some of these documents for a period not exceeding fifty years if the public interest requires so.” [5] Decree No. 118 of 1935 regarding the constitutional system of the state [6] Article 5 of Law No. 20 of 1936 regarding the circulation of publications: “When any publication is issued, ten copies of it must be deposited in the governorate or the directorate in which the issuance occurs. A receipt for this deposit shall be given.” [7] Article 10 of the Press and Media Regulation Law No. 180 of 2018: “It is prohibited to impose any restrictions that impede the provision or availability of information, or prevent equal opportunities between the various print and electronic newspapers and the audio-visual media, or their right to access information, all without violating the requirements of national security and defense of the homeland.” [8] Dr. Osama Ahmed Abdel Naim, “Legal Regulations of the Publication Ban Decision”, 2014, Fourth Scientific Conference on Law and Media, last visited in August 2021, link: https://bit.ly/2YZJM2q [9] AFTE, “Freedom of Information… A Legal Study”, 2012, last visited in September 2021, link: https://bit.ly/3CuBw8c [10] AFTE, “The Internet and the Law Series,” June 2021, last visited in September 2021, link: https://afteegypt.org/legislations/legislative-analysis/2021/06/29/23248-afteegypt.html [11] Op. cit. [12] Op. cit. [13] Article 56 of Law No. 46 of 1964 “A worker may not: Disclose matters that he/she becomes acquainted with by virtue of his/her position, if these matters are confidential in nature or pursuant to instructions, and this obligation shall remain in place even after the worker leaves service. Keep for himself/herself the original copy of any of the official papers or remove this original copy from the files designated for its preservation, even if it is related to a work assigned to him/her personally. Violate the private and public security procedures on which a decision is issued by the competent minister or whoever exercises his powers. [14] Article 77 of Law No. 47 of 1978: “Employees may not: (7) Make any remarks or statements about their work through newspapers or other means of publication, unless they are authorized in writing by the relevant manager to do so. (8) Disclose matters that they become acquainted with by virtue of their position if these matters are confidential in nature or pursuant to instructions, and this obligation of secrecy shall remain in place even after the employees leave the service. [15] General Budget and Human Rights Observatory, “Towards Law on Freedom of Information in Egypt”, May 2015, last visited in September 2021, link: https://bit.ly/30JmrD5 [16] Article 36 of the General Mobilization Law: “Any worker involved in mobilization affairs who discloses secrets about units of the state’s administrative apparatus, individuals, agencies, public sector companies, public business sector companies or private sector companies related to their work shall be punished by imprisonment and a fine of no less than 2,500 pounds and not exceeding 5,000 pounds, or either of these two penalties. If the crime occurs during the mobilization period, the penalty shall be temporary hard labor or imprisonment. [17] Article 174 of Penal Code No. 58 of 1937: “Any person who commits, by any of the above-mentioned methods, any of the following acts, shall be punished with imprisonment for a period not exceeding five years and a fine of no less than 5,000 pounds and not more than 10,000 pounds: First) Incitement to overthrow the established system of government in the Egyptian state. Second) Promoting doctrines that aim to change the basic principles of the constitution or the basic systems of the social structure by force or by terrorism. Whoever encourages, by means of material or financial assistance, the perpetration of one of the crimes stipulated in the previous two paragraphs, without intending to participate directly in its commission, shall be punished with the same penalties. [18] Article 178 (bis) of Penal Code No. 58 of 1937: “Whoever publishes, manufactures, or possesses with the intention of trading, distributing, renting, pasting or displaying false images that may harm the country’s reputation shall be punished with a fine of no less than 10,000 pounds and not more than 30,000 pounds. The penalty shall also be inflicted on whoever intentionally imports, exports, or transports, personally or via a third party, any of the foregoing for the said purpose, as well as on whoever announces therefor or displays it to the views of the public, sells it, rents it, or offers it for sale or rental, even unpublicly, and whoever presents it publicly, directly or indirectly, even for free, and in any other form, and also whoever distributes or delivers it for distribution by whatever means. [19] AFTE, “Freedom of Information… A Legal Study”, 2012, last visited in September 2021, link: https://bit.ly/3CuBw8c [20] The Johannesburg principles on national security, freedom of expression, and access to information. October 1995. Accessed in September 2021. Link: https://www.article19.org/wp-content/uploads/2018/02/joburg-principles.pdf [21] The Global Principles on National Security and The Right to Information (Tshwane), June 2013, last visited in September 2021, link: https://bit.ly/3Fzl8pb [22] The Global Principles on National Security and The Right to Information (Tshwane), June 2013, last visited in September 2021, link: https://bit.ly/3Fzl8pb
