Association of Freedom of Thought and Expression

In May 2019, MP Ahmed Badawi of the Future of the Nation Party (Mostaqbal Watan) said the parliament was in the process of drafting a package of legislation related to social media aimed at limiting its danger. Badawi, who heads the House of Representatives’ Communications and Information Technology Committee, said the House would go ahead with the move after finalizing a law on personal data protection. He noted that the new package includes Information Technology Law No. 175 of 2018, the Personal Data Protection Law that was a bill at the time and then passed in July 2020, and the Electronic Transactions (Electronic Commerce) Law, which was expected to be sent as a bill from the government.[1]

In December 2019, Badawi renewed his statements that the Communications and Information Technology Committee had a plan to pass a number of relevant laws during the fifth round of sessions of the House of Representatives. He noted that these laws would include a new one that regulates the use of social media.[2]

Before the House of Representatives announced its intention to subject social media to official control in a systematic manner, two new laws were issued in August 2018 as a start to impose various forms of criminal penalties on social media users. These two laws are the Law on Combating Information Technology Crimes No. 175 of 2018, and the Law on Regulating the Press, the Media and the Supreme Council for Media Regulation (SCMR) No. 180 of 2018.

The press and media regulation law is concerned with issues of a specific professional category. Article 19 of the law states that “any newspaper, media outlet or website is prohibited from publishing or broadcasting false news and encouraging or inciting violence, hatred, and/or discrimination between citizens, as well as calling for racism, promoting intolerance, insulting or slandering individuals, or desecrating religions”. This article does not target those working in the press and the media only, but it is also binding to “any personal website, blog or social media account with more than 5,000 followers”. Thus, the SCMR has become, for the first time since its establishment, an official body responsible for monitoring internet users.[3]

On the other hand, the Law on Combating Information Technology Crimes defines IT crimes and their penalties, in a digital context. Since it was passed, the law has been considered a legal justification for mass monitoring, similar to that imposed by the press and media regulation law. The law raised great concerns and there were calls for repealing it, mainly because it allows the collection and retention of internet users’ data, which means that all activities of the users would be monitored.[4]

In 2020, however, another problem emerged, emanating from the law. It had to do with infringing on Egyptian family values, as the police targeted a number of social media users, in what was known as “TikTok” cases. The referral of TikTok influencers was based on Article 25 of the Law on Combating Information Technology Crimes.

The Public Prosecution referred a number of defendants to both the Economic Court and the Criminal Court, on charges of committing crimes via social media. This violated laws, including those directly related to digital activity, as well as others related to crimes that may take place through any medium other than the internet. These included the Law on Combating Information Technology Crimes, the Penal Code, the Law on Combating Prostitution, the Law on Combating Human Trafficking, and finally the Child Law.

We will discuss some of these laws, as follows:

Law on Combating Information Technology Crimes (Law No. 175 of 2018)

In 2016, news websites discussed the draft law on combating information technology crimes[5]. One of the key features of the bill, which was not finalized at the time, was that it created new criminal penalties related to the method of committing crimes, in addition to committing the crime itself. This means that when using a digital platform to commit a crime of fraud or violence, for example, the penalty will be different from that applied if the crime was committed in the usual manner. This, accordingly, violates the principle of equality before the law, and clearly targets the use of information technology, thus stigmatizing the internet.[6]

This bill ended up not being passed. But in August 2018, President Abdel Fattah al-Sisi ratified Law No. 175 of 2018 on combating information technology crimes, which is a more comprehensive than the previous bill. Its scope extends to all internet and social media users, depending on broad definitions and terms. It stipulated penalties that restrict digital freedoms, thus transforming the internet from an open space that accommodates different opinions and allows for the free dissemination of information into a space for state intervention and prosecution of those whose opinions are considered crimes.

The provisions of the Law on Combating Information Technology Crimes are inconsistent with constitutional provisions and guarantees in more than one aspect. Article 6 of the law, for instance, grants judicial police powers to individuals with no capacity, based on unspecified terms and phrases such as “whenever this helps discover the truth”. Moreover, Article 7 allows for blocking websites without referring to investigation authorities, under the pretext of protecting “national security”, in clear contradiction to Article 65 of the 2014 constitution, which states that freedom of thought and opinion is guaranteed, and that every person shall have the right to express his/her opinion verbally, in writing, through imagery, or by any other means of expression and publication.[7]

The law dedicates its third chapter, which consists of 23 articles, to defining the crimes it combats. These crimes are mainly related to attacks on information networks, systems and technologies, fraud and attacks on bank cards, services and electronic payment tools, attacks on privacy, as well as illegal information content, crimes of website managers, criminal liability of electronic service providers, in addition to crimes that harm national security and social peace.

The law uses vague words repeatedly, resulting in severe penalties without clearly specifying the acts that are the subject of the crime. Thus, it contradicts Article 95 of the constitution which stipulates that there shall be no crime or punishment except pursuant to a law. Therefore, a problem emerges as to how to define the acts that the law considers crimes. How can the crime of infringing on family values and principles be proven, as stated in Article 25? On what basis the accused is convicted of disturbing public order or national security or harming national unity and social peace, as stated in Article 34?

Some users of the video sharing apps TikTok and Likee have recently been brought before the Economic Court due to three articles of that law. The first is Article 22 on the safety of information systems and technologies, which states:

“Anyone who possesses, acquires… any devices, equipment or tools, or designed software… without obtaining the permission of authority or holding a credential in fact or in law, and it is proved that such act was aimed at using any of the foregoing for committing or facilitating the commission of any crime provided for in this law… shall be punished by imprisonment for no less than two years and a fine of no less than 300,000 Egyptian pounds and no more than 500,000 pounds, or by one of these two penalties”.

The article does not stipulate a penalty related to the act of using electronic devices or software without authorization. Rather, the penalty is implemented when the purpose of the act is to commit a crime stipulated by law. This means that the Egyptian legislator allowed a criminal penalty, the minimum of which is imprisonment for two years or a fine of 300,000 pounds, for possession of the tool of crime, even before considering the subject of the crime itself. It should be noted that the minimum penalty for possession of a tool of crime in the Law on Combatting Information Technology Crimes is harsher than the punishment for a number of actual crimes stipulated by the law. This reflects the lack of balance and reasonableness in drafting the penal text.

Article 25 of the law was the main reason behind the arrest of a number of TikTok users for posting entertainment content. It was also the reason for referring them to trial for allegedly infringing on Egyptian family values. It states:

“Anyone who infringes a family principle or value of the Egyptian society, encroaches on privacy, sends many emails to a certain person without obtaining his/her consent, provides personal data to an e-system or website for promoting commodities or services without getting the approval thereof, or publishes, via the internet or by any means of information technology, information, news, images or the like, which infringes the privacy of any person involuntarily, whether the published information is true or false, shall be punished by imprisonment for no less than 6 months and/or a fine of no less than 50,000 pounds and no more than 100,000 pounds.”

Neither the article nor the executive regulations of the law clarified what these principles and values are. The unconstitutionality of the article was argued before the Cairo Economic Appeals Court, in Case No. 246 of 2020, regarding accusations of infringement on family values. The argument was based on the fact that the article violated Articles 95 and 96 of the Egyptian constitution.[8]

Also, the act of infringing on family values mentioned in Article 25 was ambiguous and confused with other crimes punishable by other laws, including the Penal Code. The article failed to distinguish between the criminal act and what is infringed. It did not even specify a clear and specific definition of the family values that may be infringed.

The punitive text of the article is also unclear and lacks the legal concept of crime. It causes a number of different crimes, which are punishable by other laws, to overlap. These crimes include, among others, the acts that the Penal Code criminalizes for being indecent, which are very similar to the crime of infringing on family values, as the Egyptian legislator did not specify the meaning of either of them. This makes these terms relative and subject to different interpretations according to personal beliefs and whims, which contradicts the principle of the legality of crimes and penalties.[9]

Article 27 of the law was the last to be used in prosecuting social media users. It states that “anyone who creates, manages, uses a website or a private account on the internet for the purpose of committing or facilitating a punishable crime shall be punishable by imprisonment for no less than two years and a fine of no less than 100,000 pounds and no more than 300,000 pounds, or by one of these two penalties”.

Here, the legislator sets a penalty for what may be considered possession of a “crime tool” if its aim is to violate the law. The article is similar to what was stated in the draft cybercrime law in 2016[10], in violation of the principle of equality before the law. This is meant to stigmatize the use of information technology, as the penalty differs upon conviction if the internet was the medium used.

Law on Combating Human Trafficking (Law No. 64 of 2010)

The Public Prosecution referred Haneen Hossam and Mawaddah al-Adham to trial on charges of human trafficking via Likee, along with three other men on charges of complicity. The prosecution based its charges on seven articles of Law No. 64 of 2010 on Combating Human Trafficking, namely Articles 1 to 6 and Article 13. The law does not provide a clear definition or indication of the limits of committing the human trafficking crime through an electronic medium.

Article 1 of the law defines the crime of a transnational nature as “any crime committed in more than one country, or committed in one country and was prepared, planned, directed, supervised, or financed in or through another country, or committed in one country by an organized criminal group engaged in criminal activities in more than one country, or committed in one country with effects in another country”.

The order to refer Hossam and Al-Adham to trial, however, did not include any of the “foreign” employees or officials, if they were considered among those who supervised or financed the crime.

The Public Prosecution believed that Hossam and Al-Adham violated Article 2 of the law, which states that “a person who commits the crime of human trafficking shall be considered one who deals in any manner in a natural person, including… the exploitation of a state of vulnerability or need, or through a promise to give or receive payments or benefits in exchange for obtaining the consent of a person to traffic another person he/she has control over, or if the purpose of the transaction was exploitation in any of its forms, including exploitation of acts of prostitution and all forms of sexual exploitation, exploitation of children in such acts and in pornography”.

The law, however, did not set a clear definition of prostitution or acts that fall under the name of debauchery. It mentions a number of accusations with broad descriptions that may be interpreted differently. The same confusion exists in other laws, such as the Law on Combating Information Technology Crimes and the Penal Code, when referring to crimes that infringe on family values and public decency.

[1] Youm7, Three pieces of legislation to limit the danger of social media and face its problems, 15 May 2019, last visited on 10 May 2021, link: https://bit.ly/3vO2FQC

[2] Youm7, “Social media” on top… six pieces of legislation on the agenda of the parliament’s communications committee, 8 December 2019, last visited on 10 May 2021, link: https://bit.ly/33vjqnE

[3] AFTE, the Supreme Council for Media Regulation … Reading in powers and practices, 22 April 2019, last visited on 10 May 2021, link: https://afteegypt.org/media_freedom/2019/04/22/17424-afteegypt.html

[4] Joint statement, “Anti-cybercrime” law and the law regulating the press and the media in Egypt violate the basic right to freedom of expression, 6 September 2018, last visited on 10 May 2021, link: https://bit.ly/3f5AlTh

[5] Al-Watan publishes the text of the anti-cybercrime law discussed by the parliament, 11 May 2016, last visited on 10 May 2021, link: https://bit.ly/2RDExRZ

[6] Joint policy report, Combating technology, 6 June 2018, last visited on 10 May 2021, link: https://bit.ly/2RaRSkN

[7] Mohamed Ebeid, Silence laws do not spare the internet, a position paper on the Law on Combating Information Technology Crimes, Arabic Network for Human Rights Information, 2 September 2018, last visited on 10 May 2021, link: https://bit.ly/3uzhSoz

[8] Technology and law community, Massar argues that the crime of infringing on family values is unconstitutional, 17 August 2020, last visited on 10 May 2021, link: https://bit.ly/33sMnRd

[9] Ibid

[10] Op. cit.

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