This paper comes within the framework of providing legal analysis to one of the trials known as TikTok trials targeting female users of the Application. We address here the case against Sherifa Raaft, who is commonly known as (Sherry Hanem) and Nora Hesham, commonly known as (Zomoroda). A case in which the Association for Freedom of Thought Expression (AFTE) has contributed in providing legal aid in the appeal stage of the five-year prison sentence against them. The commentary is the second in a series of papers in which AFTE analyses the TikTok case papers sequentially, as part of working on establishing a section for the “TikTok cases”. Our first paper analyzed the case of Haneen Hosam and Mawaddah Al-Adham.
Methodology
This document is based on the case papers of Sherry Hanem and Zomoroda, bearing Number 370/2020 misdemeanours, and registered as 535/2020, in the economic misdemeanour court, including the appeal submitted against the 5-years imprisonment sentence and a fine of 100,000 Egyptian pounds, in addition to monitoring and follow-up by AFTE for news, reports and official statements, whether by the Public Prosecution, or press that addressed the incident and included incitement against Sherry and Zomorda.
The two content creators were arrested from their home in June 2020, based on an arrest warrant. The Public Prosecution referred them to the Cairo Economic Misdemeanour Court. In September 2020, the court issued against them a sentence of 6 years imprisonment, a fine of 100,000 pounds, and police surveillance for 3 years. years. In June 2021 an economic misdemeanour appellant ruled that the appeal was accepted and amended the verdict to 5 years in prison and a fine of 100,000 pounds.
Introduction: What are the Tik Tok trials?
In April 2020, the Public Prosecution Office launched a massive crackdown, which is still ongoing, against female content creators and their assistants on the video-sharing app TikTok, which resulted in the arrest of 15 people, most of whom are women. The Public Prosecution filed successive lawsuits against them, placing them in different legal positions, each according to the context of her case and the type of accusations leveled in it.
Egyptian courts began issuing verdicts up to a 10-year prison sentence and a fine of 200,000 pounds, such as in the case of Mawaddah al-Adham and Haneen Hosam, with a common factor of similar charges against all these defendants; accusations of infringement upon the values of the Egyptian family, according to the CyberCrime Law, whereas there is no specific criterion defining the values of the Egyptian family. Despite this common factor, each case has its own singularity, which makes it necessary to highlight them separately.
The TikTok trials have a special nature, considering the unprecedented systematic crackdown led by the Public Prosecution, which led to revealing the intersections of these cases with digital freedom of expression, a right in which its importance and necessity of its protection is crystal clear. Especially in light of the pandemic as it impelled citizens to stay in their homes with the beginning of the outbreak of Covid-19, leading to an increase in the use of the Internet, including social media apps like TikTok.
In parallel, the Egyptian authorities aimed at besieging new spaces of expression which have emerged since the beginning of the pandemic in 2020. This is not a new practice from the authorities, as they have been aiming for years to impose control over the Internet through illegal measures such as blocking websites and imposing mass surveillance under the pretext of “protecting cyber borders.”
On the other hand, the TikTok trails intersect with the right to personal freedom and freedom of body, as this period witnessed an unprecedented interest to monitor ethics and public morals on the Internet from the Public Prosecution Office. This comes after years of focusing on critical political content. It is clear from these trials that this concern for morals has fundamentally affected women’s rights and their status within a system that entrenches male domination and undermines possibilities of economic empowerment for women.
A large part of the criticism directed at TikTok content creators relates to the fact that they obtain financial profit through entertainment they provide through this App or others.
It can be said that the campaign against TikTok content creators was marked by a clear breach of their privacy. Cases against Haneen Hosam, Mawadda al-Adham, Sherry, and Zomoroda were accompanied by major media attacks. The cases made against them included accusations of daunting crimes such as human trafficking. Here we analyze “Sherry Hanem’s and Zomoroda”’s case, who were accused of habitual practice of prostitution, which is criminalized according to Egyptian law, an accusation clearly used to demonize these women. As Sherry Hanem and Zomorada topped the search engine indicators following accusations of prostitution.
All of this restricts the freedom to use the Internet, and places users; specifically women, in constant fear of being prosecuted for the content they publish.
The phase of seizure: A violation of privacy
The nature of legal and human rights violations that occurred against Sherry Hanem and Zomoroda reveals the public prosecution’s moral discourse, as an essential part of the current authority’s escalating discourse since 2014, which directly contributed to reinforcing violence and abuses against these women.
The Public Prosecution encouraged an inflammatory media discourse that was circulated by the media outlets, whether through issuing prejudgments in their statements about the arrest of these women or failing to protect their right of privacy, or providing a fair trial and safeguard free expression of opinions, which contributed to the consolidation of a “notorious” image of these women, as well as the nature and purpose of their virtual presence on social media platforms, and it can be said that this image had a significant impact, on both levels of the procedures of arrest, trial and ruling against them, as well as on the nature of the news circulated about them.
On June 8, 2020, the Public Prosecution issued an order to seize Sherry Hanem and Zomoroda, based on two reports filed against them that accused them of inciting immorality and spreading obscenity through appearing in inappropriate clothes. In addition to a report issued by the General Administration of Ethics, and another one gathering outraged comments by social media users against Sherry and Zomoroda videos, that was prepared by non-specialized employees under the Public Prosecution’s administrative unit of “information management and guidance.”
The law regulating arrest warrants for defendants does not include examining the content of seizures except in specific cases specified in the Egyptian constitution, such as destroying evidence as a result of failure to examine it. In Sherry and Zomoroada’s case, the Public Prosecution issued an order to seize and bring them, as well as the seizure of their electronic devices, but the judicial control officer exceeded the Public Prosecution’s mandate, thus violating the law through examining their electronic devices and personal conversations on WhatsApp and Messenger Apps, which are private messages that should not be accessed except by virtue of reasoned judicial permission. It is worth mentioning that electronic communications were added to communications covered by protection in Article (57) of Egypt’s Constitution, in its amended version of 2014.
Investigations: The right to Legal Defense
The right of accused persons to legal defense is a cornerstone of ensuring a fair trial. In the case of Sherry Hanem and Zomoroda, the Public Prosecution began investigating them without the presence of a lawyer. This contradicts the text of Article (124) of the Code of Criminal Procedure, which confirms this right, and sets specific exceptions to it, including flagrante delicto or fear of losing evidence, which are not applicable to this case. The Public Prosecution also violated the rights of Sherry Hanem and Zomoroda to view accusations and evidence, and to state their legal position, a violation that continued until their first court sessions.
The Public Prosecution has filed seven charges against Sherry Hanem and Zomoroda, which we deem necessary to list, as stated in the court verdict, given that the wording and content of these charges strongly express the systematic crackdown against these women. The accusations came against Sharifa Rifaat Abdel-Muttalib Atwa, known as Sherry Hanem, and Nora Hisham Ahmed Alaa El-Din Al-Zuhairi, known as Zomorada, during the period from 2019 to June 10, 2020:
- Using their accounts on social networking Apps (YouTube, Tik Tok, Instagram, and WhatsApp), they published video clips and personal photos, which violate public modesty, as detailed in the investigations.
- They publicly committed a flagrant and indecent act by publishing the videoclips and personal photos mentioned in the previous clause, as they contain sexual insinuations by gesture, deed, and explicitly speaking, as detailed in the investigations.
- They violated family principles and values of Egyptian society by publishing videos and personal photos that included an infringement upon these principles and values on social media pages and YouTube channels, making the content available to all, as indicated in the report by the General Administration of Information Technology (attached) and as detailed in the investigations.
- They created and used their accounts on social networking Apps (Instagram, TikTok, and WhatsApp) and their YouTube channel to commit and facilitate the commission of crimes under clauses (1,2,5,6,7) as detailed in the investigations.
- They announced, through their accounts on social networking sites referred to in Clause (1), an invitation that includes a temptation to prostitution and drawing attention, that they have published video clips and personal photos indicated under the previous clauses as detailed in the investigations.
- The first defendant facilitated prostitution for the second one by filming some of the clips and pictures mentioned in the previous two articles, followed by publishing those pictures and video clips on their accounts referred to in articles (1 and 4), so the crime of the second was completed in place of the article (7) based on the assistance is as detailed in the investigations.
- The second defendant used to engage in prostitution with men without discrimination in return for money, as detailed in the report of the General Administration of Information Technology and investigations.
In pressing these charges, the Prosecution relied on statements of the administrative officials responsible for controlling and analyzing the content of the videos, saying that Sherry Hanem and Zomoroda published clips that contain sexual overtones to increase viewership, which leads to them receiving sums of money, which indicates a lack of understanding of the nature of social media.
The profit relationship between consumers and the entertainment service provider is an essential part of this medium. In this regard, the Egyptian parliament had submitted a draft law to impose taxes on profiting from social media. It is also worth mentioning that the videos under question did not include crimes punishable by law, such as incitement or sexual exploitation.
The statements made by officials of the Public Prosecution raise another issue relating to the institution’s vision of cyberspace, which was also evident through the statements of the Public Prosecution, as it described it as part of the country’s borders, requiring deterrence and guarding measures, and not an important medium that creates spaces that are explored every day for communication social interaction among individuals from all over the world. Whereas the duty of governments is to regulate this matter and enact laws to make it a more suitable space for expressing opinion, especially for minorities.
In this hostile context, the Public Prosecution demanded the punishment of Sherry Hanem and Zomorada by Articles 178 and 278 of the Penal Code, which relate to immoral acts and breach of public modesty. In addition to Articles 12, 25, 27 and 38 of Law 175/2018 regarding information technology crimes, in addition to articles: (1) Paragraph A, (9) First Paragraph, Clause C, (13), (14), (15) and (16) of Law 10/1961 on combating prostitution, specifying its habitual practice and its facilitation.
Most of the charges relate to crimes of publishing, which resulted in a number of accusations, including threatening values of the Egyptian family, and other charges related to the practice of prostitution and facilitating it, all which are being addressed in this document.
Verdict: Lack of Fair Trial Guarantees
The Public Prosecution referred the case against Sherry and Zomoroda to criminal trial before the Second Circuit for economic misdemeanors. The court issued a swift verdict in September 2020, two months after the trial began, sentencing them to three years in prison with labor, in addition to fining each of them to 100,000 Egyptians pounds pending the first five charges and confiscating the seized items, as well as obligating them to pay criminal expenses, and also an additional sentence of 3 years in prison and a fine of 300 Egyptian pounds, and finally three years of probation for the sixth charge related to facilitating the practice of prostitution.
It should be noted that the court interrogated Sherry and Zomoroda in the second session without the presence of a legal representative to defend them, in clear violation of Articles 271 and 274 of the Criminal Code Procedure. Both defendants were also surprised by the intervention of a lawyer to defend them in the appeal hearing without their prior knowledge, which substantially violates the guarantees of fair trials, and invalidates the legality of confessions as they were deprived from the right to insight as well as access to accusations and evidence, thus imposing a state of ignorance upon them regarding the accusations they face.
This is based on the link between crimes violating Article 32 of the Penal Code, which states that “if a single act constitutes multiple crimes, the crime for which the punishment is more severe must be considered and the punishment shall be for it only.
The harsh verdict against the two women ignored the application of the law, as multiple penalties were imposed on them, based on the link between the crimes in violation of Article 32 of the Penal Code, which states that “if a single act constitutes multiple crimes, the crime for which the punishment is more severe must be considered and the sentence imposed only. If several crimes with a single purpose were linked to each other in such a way that they cannot be divided, they must all be considered one crime, and the punishment prescribed for the most severe of these crimes shall be passed”. In its ruling, the court did not consider that.
Such arbitrary verdicts create a state of fear over the Internet and the right to digital expression. Also, the practices of the Egyptian authorities in the TikTok trials send a message that the Internet is no longer a space for expression, but rather it has become full of legal traps, such as transgressing the values of the Egyptian family, which apply to a wide range of human behavior.
