January 16, 2012

4. Protect and Decriminalize Free Expression

Egypt’s Penal Code and press law contain articles that provide prison terms and fines for peaceful speech, notably speech deemed defamatory not only toward individuals but also to state institutions; and speech deemed liable to disturb the public order, or deemed harmful to Egypt’s image. These content-based provisions allow a court to convict any person whose speech it deems to be “insulting” or “harmful.” They also include provisions that criminalize speech that “spreads false information,” “harms public morals,” or advocates change to the existing political order. In contrast, it is a norm of international law that freedom of expression is best protected by decriminalizing all acts of speech except those that constitute incitement to imminent violence. 

Vaguely defined limits on substantive speech invite abusive and discriminatory enforcement. Governments often use vague regulations such as “offending a public official” or “spreading harmful information” as a tool to prevent public criticism of government officials and policies, and indeed, the Egyptian government has historically used these provisions to arrest and detain critics, journalists, writers, and opposition politicians. Such enforcement prevents useful insights and information from dissemination into the public consciousness and is contrary to the right of citizens to question and challenge their government.  

Accepted international standards allow only restrictions on content of speech in extremely narrow circumstances, such as cases of slander or libel against private individuals or speech that clearly threatens national security. Restrictions must be clearly defined, specific, necessary, and proportionate to the interest protected. Article 19 of the ICCPR sets out the very narrow conditions under which limitations on speech are permissible, namely that they be provided by law and necessary “(a) For the respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.” This test is also mirrored in article 27(2) of the African Charter on Human and Peoples’ Rights.

The Human Rights Committee’s authoritative interpretation requires that the restrictions specified in article 19(3) should be interpreted narrowly and that the restrictions “may not put in jeopardy the right itself.[29] The government may impose restrictions only if they are prescribed by existing legislation and meet the standard of being “necessary in a democratic society.” This implies that the limitation must respond to a pressing public need and be oriented along the basic democratic values of pluralism and tolerance. “Necessary” restrictions must also be proportionate, that is, balanced against the specific need for the restriction being put in place. The committee also states in General Comment 34 that “restrictions must not be overbroad” and that “the value placed by the Covenant upon uninhibited expression is particularly high in the circumstances of public debate in a democratic society concerning figures in the public and political domain.”[30]

In applying a limitation, a government should use no more restrictive means than are absolutely required. The lawfulness of government restrictions on speech and the dissemination of information are thus subject to considerations of proportionality and necessity. So, for example, the government may prohibit media procurement and dissemination of military secrets, but restrictions on freedom of expression to protect national security “are permissible only in serious cases of political or military threat to the entire nation.” Since restrictions based on protection of national security have the potential to completely undermine freedom of expression, “particularly strict requirements must be placed on the necessity (proportionality) of a given statutory restriction.”[31]

Spreading “False” Information

Article 102(bis) allows for detaining anyone who "deliberately diffuses news, information/data, or false or tendentious rumors, or propagates exciting publicity, if this is liable to disturb public security, spread horror among the people, or cause harm or damage to the public interest.”

Article 80 (d) provides a punishment of six months to five years for “deliberately diffusing abroad news, information/data, or false rumors about the internal situation in the country in order to weaken financial confidence in the country or in its dignity, or [for taking] part in any activity with the goal of harming national interests of the country.”

Article 188 provides for imprisoning for a maximum one year any person who “makes public—with malicious intent—false news, statements or rumors that [are] likely to disturb public order.”

Expressing false information is not a permissible restriction on freedom of expression under article 19 (3) of the ICCPR. The Human Rights Committee states very clearly that “the Covenant does not permit general prohibition of expression of an erroneous opinion or an incorrect interpretation of past events.”[32]

The Mubarak government relied on these Panel Code provisions on numerous occasions to arrest and sentence activists for legitimate peaceful expression:

On January 8, 2007, security officers at Cairo airport stopped Huwaida Taha Mitwalli, a journalist for London’s Al-Quds al-Arabi who was making a documentary about torture in Egypt for the Al-Jazeera news network. They prevented Mitwalli from leaving Egypt and confiscated her videotapes and computer as she tried to board a flight to Qatar earlier in the year on January 8.[33] Prosecutors charged her with “practicing activities that harm the national interest of the country” and “possessing and giving false pictures about the internal situation in Egypt that could undermine the dignity of the country,” but released her on bail. On January 12 she received a summons to appear at the Supreme State Security Court the next day for “seeking the help of some youths to film fabricated scenes as incidents of torture.” The arrest followed public outcry over a series of videos apparently depicting prisoner abuse in Egyptian detention facilities, including one tape showing a Cairo microbus driver being raped in police custody.

On May 2, 2007, a criminal court sentenced her to six months imprisonment for harming "the dignity of the country." In March 2008, an appeals court dropped the sentence of imprisonment, retaining only the fine. [34]

In 2007 a Cairo misdemeanor court sentenced four editors of independent and opposition newspapers to a one year in prison and a LE 20,000 ($3,500) fine for violating article 188 of the Penal Code, which punishes any person who “makes public—with malicious intent—false news, statements or rumors that [are] likely to disturb public order.”

The SCAF has relied on these same provisions to interrogate and sentence journalists for writing critically about it. Most recently, a military court sentenced Maikel Nabil to three years in prison on April 11, 2011, for "insulting the military establishment" because he had been critical of the military on his blog and Facebook page. The military prosecutor charged him with "insulting the military establishment" under article 184 of the Penal Code, and with "spreading false information," a violation of article 102 bis, solely on the basis of his criticism of the military for involvement in human rights abuses and corruption on his blog and Facebook page. The military judge convicted him on both counts and sentenced Nabil to three years imprisonment. Neither Nabil nor any of his lawyers were present, in violation of the code of criminal procedure. He remains in prison.

On other occasions since the overthrow of Mubarak, the military has summoned journalists and activists to question them about what it believes were unsubstantiated accusations. On May 31 the military prosecutor summoned blogger and activist Hossam al-Hamalawy, TV presenter Reem Maged, and journalist Nabil Sharaf to question them about their criticism of the military on TV during the previous week. On June 19 the military prosecutor summoned Egyptian daily El Fagr journalist Rasha Azab and her editor Adel Hamouda to question them in connection with an article written by Azab accusing the military of conducting virginity tests on female protesters and torturing protesters in March. The military prosecutor did not charge any of the journalists and released them after a couple of hours. In early June a SCAF member told Human Rights Watch that the military did not summon all those who criticized the SCAF, but only those who “make accusations against the SCAF; we summon them and ask them to present evidence to substantiate their claims.”[35]

Calls for Political Change:

  • Article 98B, added by Law No. 117 of 1946 and amended by Law 311 of 1953, of the Penal Code provides for a maximum five-year sentence and five-hundred Egyptian Pound fine ($84) for anyone who “calls for changing the basic principles of the Constitution or the basic systems of the social community, or the domination of one class over the other classes, or for ending a social class, overthrowing the basic social or economic systems of the State, or pulling down any of the basic systems of the social community, through the use of force or terrorism, or any other illegal method.”  
  • Article 98B(bis) further extends these penalties to "whoever obtains, personally or by an intermediary, or possesses written documents or printed matter comprising advocacy or propagation of anything of what is prescribed in articles 98B and 174, if they are prepared for distribution or for access by third parties, and whoever possesses any means of printing, recording or publicity which is appropriated, even temporarily, for printing, recording, or diffusing calls, songs, or publicity concerning a doctrine, association, corporation, or organization having in view any of the purposes prescribed in the said two articles.”
  • Article 174 provides for imprisonment of not less than five years for whoever “incites to the overthrow of the system of government in Egypt.”
  • Article 176 allows for the imprisonment of anyone who “instigates discrimination against a sect because of gender, origin, language, religion, or belief, if such instigation is liable to disturb public order.”

Such broad and sweeping criminalization of political speech that does not directly incite violence does not comply with the strict conditions for limits on speech provided for in the ICCPR.[36] It also leads to outdated and unclear provisions, such as those that prohibit calls to “end a social class” or the “basic systems of the social community,” which allow a government to determine subjectively whether or not the speech in question is lawful.

The Mubarak government relied on these provisions to silence critics who sought any change in government. Article 98 of the Penal Code provides criminal penalties for speech that go far beyond what is legitimate under international law, criminalizing political expression if it is critical of, or seeks to change, the current political, economic, and social order because it considers speech illegal in a number of cases listed above and has therefore been applied in cases that go far beyond the use or incitement to violence.

The heart of efforts to uphold freedom of speech is based on the belief that people should be free to challenge their government and society and seek to change it, through peaceful expression of views. Public discussion of changes to the political, social, or economic system is a normal part of political life in any country that respects freedom of expression.

On February 21, 2007, in the first ever sentence against a blogger, an Egyptian court sentenced Abd al-Karim Nabil Sulaiman, better known by his pen name Karim Amer, to four years in prison for the political and social commentary on his blog, which was protected by freedom of expression since it did not incite violence in any way. It sentenced him on charges of insulting Islam, defaming the president, and “spreading information disruptive of the public order.” Article 176 of the Penal Code, the apparent basis of the “insulting Islam” charge against Sulaiman, allows for imprisoning “whoever instigates … discrimination against one of the people’s sects because of race, origin, language, or belief, if such instigation is liable to disturb public order.” Amer served the four years in prison and was released in November 2010.[37]

Harming Public Morals

  • Article 178 of the Egyptian Penal Code reads, "Whoever makes or holds, for the purpose of trade, distribution, leasing, pasting, or displaying printed matter [or] manuscripts … if they are against public morals, shall be punished with detention for a period not exceeding two years and a fine of not less than 5,000 pounds ($839) and not exceeding 10,000 pounds ($1,678) or either penalty.”

Although article 19(3) of the ICCPR lists public morals as one justification for restricting expression, the Human Rights Committee clarified in General Comment No. 22 that “the concept of morals derives from many social, philosophical, and religious traditions; consequently, limitations ... for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.”[38] The restriction must also meet stringent conditions of necessity and proportionality. The government may impose restrictions only if they are prescribed by existing legislation and meet the standard of being “necessary in a democratic society.” This implies that the limitation must respond to a pressing public need and be oriented along the basic democratic values of pluralism and tolerance. “Necessary” restrictions must also be proportionate, that is, balanced against the specific need for the restriction being imposed.

In June 2002 the Sayyida Zainab court in Cairo sentenced Shohdy Naguib Sorour to a year in prison for possessing and distributing "Kuss Ummiyat," a  political satire written by his father, the late Egyptian avant-garde poet Naguib Sorour, between 1969 and 1974. The court found that Shohdy had posted the poem on the Web site http://www.wadada.net and that the poem—which blasted those Sorour held responsible for Egypt’s defeat in the 1967 Middle East War—transgressed public morality, based on article 178, due to its lewd play on words in the title and shock-poetry content. Sorour's lawyers argued that the prosecution could not prove that Sorour had posted the poem on the Internet. The court convicted Sorour even though the only piece of evidence the prosecution could produce was that Sorour, like thousands of his father's admirers, possessed a hard copy of the poem. On October 14, 2002, the South Cairo Bab al-Khalq appeals court confirmed the Sayyida Zainab court's one-year sentence.

[29]UN Human Rights Committee, General Comment No. 34 on article 19 Freedom of Opinion and Expression, July 21, 2011, CCPRLCLGCL34.

[30]Ibid.

[31]Nowak, CCPR Commentary, p. 355.

[32]UN Human Rights Committee, General Comment No. 34 on Article 19 Freedom of Opinion and Expression, July 21, 2011, CCPRLCLGCL34; para 49.

[33]Egypt: Government Detains Al-Jazeera Journalist,” Human Rights Watch news release, January 17, 2007, http://www.hrw.org/news/2007/01/16/egypt-government-detains-al-jazeera-journalist.

 

[34]“Egypt: Prison for Al-Jazeera Journalist Who Exposed Torture,” Human Rights Watch news release, May 2, 2007, http://www.hrw.org/news/2007/05/02/egypt-prison-al-jazeera-journalist-who-exposed-torture.

[35]Human Rights Watch meeting with a general of the SCAF, Ministry of Defense, Cairo, June 6, 2011.

[36]See paras. 21-36 of UN Human Rights Committee, General Comment No. 34 on Article 19 Freedom of Opinion and Expression, July 21, 2011, CCPRLCLGCL34.

[37]“Egypt: Drop Charges Against Blogger,” Human Rights Watch news release, January 26, 2007, http://www.hrw.org/news/2007/01/26/egypt-drop-charges-against-blogger.

[38]UN Human Rights Committee, General Comment No. 22 on Article 19 Freedom of Opinion and Expression, July 21, 2011, CCPRLCLGCL34.