Freedom of information
For decades, Egypt has lacked a legislation providing the right to information. After the January 25 revolution, civil society organizations, experts, and politicians advocated the importance of enacting the Freedom of Information law and urged official agencies to adopt information disclosure and transparency policies. The effect of these efforts was apparent when drafting the Egyptian constitution in 2012, as for the first time the Egyptian constitution provides for the right to freedom of information, in Article 47 of the Constitution issued in 2012. Since then, the legislature has been obligated to work for the issuance of the law on the freedom of information, but as a result of the absence of parliament at the time and the successive political developments that occurred in Egypt in 2013, efforts to issue the law were stopped.
In fact, the current executive authority is working hard to ignore public opinion’s requests to disclose information on a number of prominent issues, for example, discussing the agreement to demarcate the maritime borders between Egypt and Saudi Arabia, and the ongoing debate on the cost and feasibility of major national projects such as the New Suez Canal or the Administrative Capital, and counter-terrorism policies. The executive authority and its security apparatuses also imposed great restrictions on the work of the Egyptian media, which subjected it to the control of the security authorities, in parallel with the interference of the State Information Service in the work of foreign media.
Constitutional text without legislation
One attempt by the former deputy in the House of Representatives, Anwar El Sadat, can be monitored in 2016, when he presented a draft law on the freedom of information, in June 2016. The draft law brought experiences from previous drafts submitted to the People’s Assembly in 2012, as El Sadat was chairing the Human Rights Committee in the parliament. The House of Representatives did not initiate discussion of this project, until this report was issued.
The Supreme Council for Media Regulation, which is an independent body in accordance with the text of the constitution, sought to prepare the Law on the Circulation of Information, in 2017. It actually formed a committee to prepare the law, as “the committee held 5 meetings during which it discussed law proposals submitted by the Journalists Syndicate and civil society organizations.” AFTE and Article 19 organization had sent several documents to the committee preparing the law on the circulation of information, including a draft law on the circulation of information prepared by AFTE, the Egyptian Initiative for Personal Rights and ID3M center for information technology in partnership with experts in 2012.
The committee finished preparing the draft law, and the Supreme Council for Media Regulation held sessions in state-owned press institutions to discuss it, and then it was sent to the Cabinet, which has the authority to present the bill to the House of Representatives. To this day, the cabinet did not send the bill to the parliament, and Makram Mohamed Ahmed, head of the Supreme Council for Media Regulation, criticized – press statements in August 2018– the cabinet’s reluctance to take this step.
In 2019, statements were issued by several MPs calling for the issuance of the freedom of information law during the parliamentary session that started in October 2019. The head of the Supreme Council for Media Regulation also said that the law will be issued soon. This wave of statements was associated with a debate about calls to demonstrate in September and accusations against the president by contractor Mohamed Ali. The issuance of the law was addressed to prevent spreading of rumors. However, at the time of this report, none of these MPs had submitted draft laws on freedom of information.
Section two: The attack on freedom of expression during the constitutional amendments and the September demonstrations
If we drew a linear curve for violations during 2019, we would find that there are two points that witnessed significant increases, which coincided with two prominent political events.
The first is the referendum on the constitutional amendments in April, when the National Elections Commission called for a referendum on the constitutional amendments, which were approved by the People’s Assembly in mid-April. The referendum was held in the period from April 20 till April 22, 2019. During the referendum period, voices opposing the amendments -that allowed President Sisi to continue in office until the year 2030- increased. “Batel” (Invalid) campaign was launched to denounce the amendments.
The second is the eruption of limited demonstrations –a rare event since President Abdel Fattah El-Sisi came to power- in September following calls by the actor and contractor Mohamed Ali, who lives in Spain, for Egyptians to demonstrate against President Sisi’s rule. Hundreds of Egyptians in different governorates responded to the calls.
The authorities in Egypt responded to the two events with a tight security grip and restricting the citizens’ right to freedom of expression. We will review these violations below.
Increased blocking in conjunction with political events
On September 20th, few hours before the eruption of some limited and sudden demonstrations in the squares of several governorates, the official website of the Supreme Council for Media Regulation published an article entitled “Blocking and fines are the penalty for spreading rumors in the media” . That was only a reminder of Article 17 of the Council’s Sanctions Regulations, which determined that any newspaper or media outlet or website that publish or broadcast false news or rumors or calls for violation of the law or incitement to that, are subjected to sanctions ranging from “preventing the publication or the broadcast or blocking the page or the program or the website for a specific period or permanently”.
Indeed, this is what happened. Two days after the demonstrations, and specifically on September 22nd, some internet users encountered difficulty in accessing both “BBC” and “Al Hurra” websites using different service providers. It turned out that the Egyptian authorities blocked the two websites after they covered news of the demonstrations.
“7iber” website was also blocked on September 26th, after publishing a news story entitled “Two Jordanians detained in Egypt: a routine visit ends with arrest and “confessing” on the screen”. The news story discussed the details of the arrest of two young men: Thaer Matar and Abdul Rahman Alroajbah; Matar was arrested on September 22nd, from the surroundings of Tahrir Square, while Alroajbah was arrested from his home, at dawn of the next day. Later, the two Jordanian young men appeared in “The Story” program presented by Amr Adib, confessing they participated in the September 20th demonstrations, and that they filmed the demonstrations in order to publish the videos on their social media accounts. On October 2nd, the Egyptian security forces released both Matar and Alroajbah. “7iber” website is still blocked in Egypt on some networks. “7iber” identifies itself as a media institution and an electronic magazine, launched in 2007 from Jordan as a platform to inform the citizen and is run voluntarily. It developed to a professional magazine in 2012.
In the same period, the Egyptian authorities tried to block instant messaging applications or prevent access to them. They blocked 11 instant messaging applications sites, most notably Wicker and Signal, and tried to block access to Wire and Facebook Messenger applications.
Blocking and preventing access to some websites and applications during the September 20th demonstrations was not the first time that the Egyptian authorities have attempted to block interaction with some political events. During the referendum period in April of this year, the authorities blocked thousands of sites during their attempt to block “Batel” campaign’s websites that were calling to vote “no” on the constitutional amendments.
“Batel” campaign was launched by an announcement on its pages in on Facebook and Twitter on 8 April 2019. The campaign used the domain (voiceonline.net) for its website calling to collect citizens’ signatures to reject the constitutional amendments. The next day, specifically 13 hours after its launch, the campaign’s website was blocked after it announced amassing around 60000 signatures rejecting the amendments. On April 10, the campaign launched a new domain to circumvent the blockage of the previous domain. The new domain was also blocked a day after it was launched.
Campaigners continued to launch alternative domains for a week whenever a domain was blocked; during this week 7 domains were blocked. It is noted that while blocking “Batel” campaign’s sites, it is likely that all websites sharing the IP address 104,198.14.52 were blocked in Egypt, with a total of 26175 domains. This is because the authorities used the Transmission Control Protocol and Internet Protocol (TCP/IP), which bans data flowing between users and the IP address of a particular hosting server of the targeted website. This means that all other hosted websites on the server will be blocked too.
Violating the privacy of individuals in light of the September events
The Egyptian police authorities practiced a set of unprecedented measures, not only towards the demonstrators but towards passers-by, through the random examination of citizens’ phones, and browsing the various accounts registered on the phones or laptops; sometimes they even examined the private messages on instant messaging applications, and the pages and groups the person is subscribed to. This behavior was not followed previously, or to be accurate, the application of these procedures was not systematic on a wide scale.
The National Council for Human Rights issued a statement after the end of its seventy-fourth meeting, in which it addressed three points related to the deterioration of the national media and the expansion of the stopping of passers-by. In the second point it mentioned: “as for the second phenomenon, it is the stopping of citizens while walking in the streets and forcing them to allow the police officers to examine their mobile phones, in violation of many provisions of the constitution that give protection to the sanctity of private life, as well as protecting citizens’ correspondence and communications, including electronic means of communication”. This statement was followed by a response from the Egyptian Ministry of Interior, in which it stated that “all cases of arrests that took place during the past days came in accordance with the law, among which are cases of flagrante delicto that allow judicial arrest commissioners to search people and their possession of movable belongings (mobile phones or otherwise according to the law)”.
This procedure represents a clear transgression by law enforcement forces on the private life and the sanctity of correspondence protected under Article 57 of the Egyptian constitution, which was keen on two things through establishing protection, the first thing is the multiplicity of the forms of protection by stipulating the confidentiality of messages in its various forms, including electronic correspondence and telephone conversations, the second thing is the obligation of obtaining a judicial order; the regulation of that was not left to the law alone, but rather regulations were put for that. The second issue relates to an understanding of the special nature of procedural laws, or laws that contain provisions of a procedural nature. These laws represent an exception to the original principle that presupposes the innocence of man. Therefore, recent Egyptian constitutions, especially since the issuance of the 1971 constitution, imposed a fence to protect from these measures, which are an exception. Therefore, the expansion of the application of these procedures or the absence of regulations is considered a fall of the legitimacy of these texts and the procedures resulting there from; the main objective of the Criminal Procedure Law is to protect the criminal from measures that violate his human dignity; for if the law establishes guarantees for the defendant, then what about someone who did not do an act worthy of accountability.
What happened is that several security points were established in some squares, places of gatherings, metro stations and on the roads leading to and from the main squares. Some people are randomly chosen, and randomness here does not mean that there are no selection parameters, but rather that stopping people was in most of the cases without prior investigation. The determinants are of course present, they are based on specific age groups and specifications related to the general appearance of the person; the examination this time did not stop at the ID, the main objective was to check phones and laptops. The rapid examination was followed by detention or release. Those who reject these procedures were arrested and subsequently examined in police headquarters or places of detention.
The most important thing that came in the statement of the Egyptian Ministry of Interior was that the measures that were taken are related to “cases of flagrante delicto that allow judicial arrest officers to search people and their possession of moveable belongings.”
The search process is generally an infringement of private life, so the law set certain controls that must be met and made it originally the authority of the investigating authorities. But the legislator made the case of flagrante delicto an exception that gives the judicial arrest officer the right to take some measures that may affect the freedom of individuals because the state of flagrante delicto allows the arrest officer to see the crime or the ability to track its effects immediately, which create the necessity of taking urgent measures, including arresting and searching the accused person. However, this power granted to the arrest officer is governed by two things; the first is that the crime is a felony or misdemeanor punishable by imprisonment for more than 3 months, and the second the presence of enough evidence to accuse the suspect.
The case of flagrante delicto relates to the discovery of the crime at a specific time and does not relate to the type of crime. It intends to detect the crime while it is being committed, or shortly after that, or to witness the effects of the crime itself (the victim or the public follow the perpetrator), or the presence of the perpetrator shortly after the crime occurred carrying things or having signs that suggest he committed the crime. It also imposes the necessity of the case of flagrante delicto with all its elements and conditions, in particular that the judicial arrest officer has examined it himself, and that his examination of it has been achieved in a legitimate way.
After the judicial arrest officer detects the crime with one of his senses while it is being committed or a short while after that, he has the right to take a set of measures, including inspection, which may occur for two reasons, the first as a preventive inspection, a precautionary measure that any member of the public authority implementing the arrest order can do so as to prevent any possible harm, and that is a right for all members of the public authority. As for the judicial inspection, i.e. inspection with the aim of finding evidence related to the crime, which may include a close examination of the accused, the legislator made it only the authority of the judicial arrest officer in cases where the person may be arrested, including flagrante delicto.
What we have mentioned regarding the case of flagrante delicto is completely different from the facts associated with the circumstances of stopping / arresting the defendants during the month of September for reasons that can be summarized quickly.
First: Most of the defendants who were arrested during this period faced accusations of spreading false news and joining/participating in a terrorist group, which is one of the crimes that have a special nature, so, a case of flagrante delicto is not conceivable. There is an actual impossibility in seeing the crime at the time it is being committed, especially since the charges relate to the publication of news via social media, which is a crime that requires the presence of technical elements and investigations that precede the arrest process, as it is a crime that requires the imposition of surveillance rather than random inspection.
Second: The accusations were built mainly on the process of inspection and examination, which supports the absence of the flagrant delicto case because the inspection in cases of flagrante delicto is subsequent to committing the crime not before that.
Third: Even if the examination process was done in a preventive or judicial manner, it is not correct to expand in performing it to the extent of examining the entire phone with all its contents and messaging applications. The messages on the mobile phone have a special sanctity derived from the private life of the holder, so it is not permissible to examine or view them except by a causal judicial order issued by the partial judge or the investigating judge and it is not allowed to the Public Prosecution itself if it undertakes the investigation in accordance with Articles 199 and 206 of the Criminal Procedures Law. If this examination is prohibited for the Public Prosecution, it is logically prohibited for the judicial arrest officer. Also examining a mobile phone includes access to the issued and received messages stored in it, which is an something that the Criminal Procedures Law in Article 97 confines to the investigating judge, and permitted him, when necessary, to assign a member of the Public Prosecution office to do so, and did not authorize him to delegate a judicial arrest officer. In addition, the Criminal Procedure Law authorizes judicial arrest officers only in cases of flagrante delicto only the powers of arrest and search, which are exceptional powers that cannot be expanded, which means that the authority of the juridical arrest officer is only to seize the phone and submitting it to the investigation authority.
Fourth: The number of defendants reached a few thousand who were arrested during this period. Is it conceivable that all these defendants were arrested in flagrante delicto while committing the crime of spreading false news?
Ready charges: spreading rumors and misusing social media
It does not matter where the arrest took place, and it does not matter what the person arrested was doing in the moments prior to the arrest. For the most part, the prosecution -especially the Supreme State Security Prosecution- will charge him with two major charges “misusing social media and spreading rumors”. If he was arrested from his home, or if he is wandering the streets or even participating in a demonstration, he is inevitably misusing social media or promoting terrorist ideas on his personal accounts. These are the charges that the prosecution directs to the majority of those arrested, before even seeing their personal accounts on social media.
Over the course of 2019, hundreds of people were charged with these accusations and held in pre-trial detention, despite being arrested at different time periods and in conjunction with different political events. After the Ramses train accident, which led to the deaths of more than 20 people, some called for demonstrations to denounce the accident in 1 March, while others called for blowing whistles from the homes. Many were arrested from the streets on suspicions of demonstrating on March 1, and the Supreme State Security Prosecution charged them with “participating with a terrorist group in one of the activities of that group, and using social media to promote the ideas of that group” , in case No. 488 of 2019. On the other hand, those who whistled were charged with the same accusations, but in case No. 1739 of 2018.
On September 20 and the following week, Egyptian security services searched pedestrian phones, forced them to open their personal accounts on Facebook, and arrested those who hand anti-regime posts on their accounts. Those arrested during this week were accused of participating with a terrorist group in achieving its objectives, broadcasting and spreading false news, misusing social media, and participating in a demonstration without a permit pending case No. 1338 of 2019.
The Public Prosecution mentioned in a statement issued on September 23, 2019, that after interrogating more than a thousand “demonstrators”, it found that the reasons for their presence in demonstration areas are “their poor economic conditions, some of them said they were deceived by some pages on social media claiming to belong to some government entities, opposing the current regime, to find out the truth about the demonstrations after the media published conflicting reports, celebrating the victory of Al-Ahli club, and some said they were accidentally present at the demonstrations’ sites”. But despite the variety of reasons and the fact that some are not criminalized by law, the Prosecution accused them all of misusing social media and spreading rumors, although they were arrested form the street.
In the same context, the Egyptian parliament also took an interest in the issue of rumors and spreading them. It began discussing an “anti-rumor” draft law, submitted by MP Soleiman Wahdan, deputy of the House of Representatives. The speaker of Parliament referred the draft law to the Legislative Committee for discussion, in November 2019.
The anti-rumor draft law consists of only three articles. The first article deals with the penalties imposed on the rumor propagators, which is imprisonment for a period of 6 months to 3 years, and a fine of not less than 10 thousand pounds and not more than one hundred thousand pounds, or one of these two penalties. The first article adds that if one or more people are injured because of the rumor, the penalty will be doubled.
The second article deals with the establishment of a rumor monitoring entity, which works to take legal measures and respond to rumors, which is under the Cabinet, and its membership includes representatives of: the Ministry of Defense, the Ministry of Interior, the Ministry of Foreign Affairs, the Ministry of Justice, the Ministry of Communications, the General Intelligence, Ministry of Endowments, Al-Azhar, the Church, and the Supreme Council for Media Regulation. The law ends with the third article, which organizes its effective date on the day following its publication in the Official Gazette.
The law is based on considering “spreading rumors and promoting them as one of the tools of the fourth-generation wars and modern wars,” according to the text of the explanatory memorandum attached to the anti-rumors draft law. The explanatory memorandum also indicates the importance of protecting national security by addressing rumors that are promoted through social media and the Internet and are widely circulated by users.
It is worth noting here that the Egyptian laws are full of articles that deal with spreading rumors and false news, including media laws and anti-cybercrime law approved by the current parliament. This raises questions about the usefulness of proposing a law to combat rumors. In Article (25) of the anti-cybercrime law, there are penalties for anyone who publishes information or images that violate the privacy of any person, whether true or incorrect, while Article (19) of the Law on the Organization of Press, Media and the Supreme Council of Media prophets websites from the publication of false news. This applies to personal websites, blogs or accounts, when the number of followers reaches 5 thousand followers. Article (19) grants the Supreme Council for Media Regulation the authority to stop or block the site, blog, or account involved in publishing false news.
Article (35) of the Anti-Terrorism Law stipulates that whoever deliberately, published by any means false news or data about terrorist acts that took place inside the country is punished with a fine of no less than two hundred thousand pounds and not exceeding five hundred thousand pounds. This article for example prohibits the media from independently covering counter-terrorism operations. The current House of Representatives approved this law as part of a package of laws issued before it was convened. The Penal Code criminalizes the publication of rumors and false news in articles: (80), (86 bis), (102 bis), and (188).
It is evident from this that the Parliament has embarked on a discussion of a law to combat rumors despite the existence of severe penalties for the same crime in several laws. On the other hand, MPs did not try to issue the freedom of information law so the citizen and the media can obtain information from official entities. Probably, the parliament and the executive authority are dominated by an obsession with withholding information and preventing its circulation. If the information is official then there is no law regulating its publication, and if it is unofficial, it is rumors that must be banned and whoever publishes it by punished, whether the Internet users or journalists.
Conclusion and recommendations
Through its annual report, which is issued for the seventh year in a row, AFTE is keen to provide the relevant entities and human rights defenders with a documented analytical material that helps to understand the state of freedom of expression in Egypt. This report reviewed patterns of violations in various files. It also devoted a whole section to studying the current regime’s repression of freedom of expression, with the aim of preventing political protests especially those rejecting the constitutional amendments and the September demonstrations.
The report ends with several recommendations that can be used in the dialogue with the Egyptian authorities on their constitutional and international obligations regarding freedom of expression and freedom of information. AFTE hopes that the relevant bodies, locally and internationally, will use these recommendations in their work to advocate for human rights in Egypt. These recommendations are:
- The Public Prosecution must release defendants in pre-trial detention pending investigations by the Supreme State Security Prosecution, on charges related to freedom of expression, including those held in cases: 488 of 2018, 930 of 2019, 1338 of 2019 and 1356 of 2019.
- The Egyptian authorities must commit to unblock 546 websites, and the Supreme Council for Media Regulation must address the practices of blocking press websites in accordance with its responsibilities.
- The Egyptian parliament should pass the Freedom of Information Act, and reject the anti-rumors bill, which restricts the freedom of expression and freedom of information.
- The Supreme Council for Media Regulation must monitor the funding of media organizations and investigate suspicions of media monopoly.
- The Prime Minister should issue the executive regulations of Law No. 180 of 2018 regarding the regulation of the press and the media.
The Official Gazette, issue no. 64, Supreme Council for Media Regulation Resolution No. 16 of 2019, March 18, 2019. For a more extensive reading of the full texts of the regulation, please review the first quarterly report of AFTE for 2019,https://afteegypt.org/publications_org/2019/05/06/17448-afteegypt.html For more information, please review AFTE’s second quarterly report for 2019,https://afteegypt.org/publications_org/2019/07/29/18020-afteegypt.html Testimony of Mokhtar Mounir, AFTE’s attorney and the journalist’s lawyer. 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Link: http://bit.ly/2SnS1zvThe National Council for Human Rights’ statement, October 3rd, 2019. The right to privacy may not be violated, shall be protected and may not be infringed upon.Postal, telegraphic and electronic correspondences, telephone calls, and other means of communication are inviolable, and their confidentiality is guaranteed. They may not be confiscated, revealed or monitored except by virtue of a reasoned judicial order, for a definite period, and only in the cases defined by Law. The State shall protect citizens' right to use all forms of public means of communications. Interrupting or disconnecting them, or depriving the citizens from using them, arbitrarily, is impermissible. This shall be regulated by Law. See a previous reference by Dr. Nagueeb Hosni, page 5 and afterwards. Who is the judicial arrest officer Regulated by articles 30 to 39 of the Egyptian Criminal Procedure Law No. 150 of 1950 and its successive amendments Dr. Mahmoud Nagueeb Hosny, previous reference, P561, footnote 3 Egyptian Court of Cassation - Appeal No. 7780 - for the year 73 Youm7’s website, Accessed on January 5, 2020, Link: https://bit.ly/363kNbW