The risks of cybercrime law on media freedoms

2017-08-19 12:55


Journalist Support Committee's Special Report
Rebutting the resolutions of the cybercrime law and its risks on media freedoms


The legal department of the Journalist Support Committee (JSC) confirmed that the cyber-crime law adopted by the executive and security authorities in the West Bank, contains dangerous provisions that constitute a “legal tool” for unjustified infringement of the rights and fundamental freedoms of citizens, in particular the right to privacy and the right to freedom of opinion and expression, the right to access information, which are all guaranteed by the Amended Basic Law and international conventions on Human Rights to which the State of Palestine has acceded.  

In a detailed report that rebut the provisions of the law and its serious consequences on the press work in Palestine, the department outlined that the violations on press freedom by the Palestinian security services in the West Bank increased drastically after the recent approval of the Palestinian President Mahmoud Abbas on the Cyber-crime law, as it represents serious violations against journalists and activists on social networking sites limiting freedom of opinion and expression.

The department pointed out that decision of Law No. 16 of 2017 on cyber-crime includes 61 articles that contain broad and loose terms that make the law vulnerable to misuse abuse and pinning the blame on journalists for publishing news that goes against the Public Prosecution’s considerations and claiming it jeopardize peace and security of the State.

The law also gave a legislative philosophy and competencies of the executive authorities to control and violate privacy in their search for an act to criminalize citizens. 

The department noted that articles (16, 20, 28, 51) as well as articles (32, 33, 34, 35, 37, 40, 41, 42, 43, 44) contain many provisions that would violate the right to privacy of citizens, without providing real legal controls for this such as judicial authorization and notifying the accused of these procedures.

The legal department believe that the real objective behind this law is “purely political”, which reinforces the authorities’ pursuit of all voices opposing their policies and guidance on the ground, whereby the law contains higher penalties than those imposed on other crimes such as theft and harassment, confirming that what has been declared about the motives for its release is far from the truth.

The department mentioned that many of the articles contained in the law have raised some questions regarding its content and the possibility of multiple interpretations, which puts journalists, activists and those interested in public affairs under the authorities’ mercy for interpretations are affected by its general mood and its position towards the journalist or activist.

There are some dangers to the media and activists in several articles of the Cyber-Crime Law, most notably article 20 which triggered the most since it does not bear clear terms of reference or specific crimes that can be considered a reference in case journalists were arrested. The text in its paragraph (1) states: “Anyone who has created or managed a website, or managed it through an electronic network, or any other information technology tool, with the intent to publish news that would endanger the integrity, public order, internal or external security of the State shall be liable to imprisonment for a term not less than one year, or a fine not less than one thousand Jordanian Dinars, and not more than five thousand Jordanian Dinars, or subjected to both penalties”.

Whereas in paragraph (2) of the article, which states that: “whoever propagates by any means the same news (elaborated in the first paragraph) with the same intention, or broadcast it or publish it, shall be liable to imprisonment for a term not exceeding one year, or a fine not less than two hundred Jordanian Dinars…etc.”, and under item (3): “If the act in paragraphs (1) and (2) of this article were conducted in a case of emergencies, the statutory penalty shall be doubled”.
In accordance with this broad article in interpreting some concepts including “State safety” and “internal and external security”, the Security Authorities have the right to arrest journalists and bring them to trial. This is not only a matter of managing a website but also of published news, liking or sharing, intentionally or unintentionally, which severely restricts freedom of opinion and expression.

Also in paragraph (3) of article (20) carries many questions: what does the state of emergency mean here? On what grounds the assessment will be conducted whether this circumstance is an emergency? Especially since the paragraph referred to a doubling of the sentence in that case. 

The law also includes article 31, which states: “any person who uses a system, website or application to bypass imposed blocking shall be liable to a term not less than three months’ imprisonment and a fine of not less than five hundred Jordanian Dinars and not more than one thousand Jordanian Dinars, under the provisions of this resolution by law”.

In accordance with this article, no user has the right to resort to any application or programs to remove the blocking imposed on some sites, and therefore the authorities are entitled to block all sites without giving citizens a chance to view them using other programs and applications, thus increasing the stranglehold on freedoms.

Article 32 also constitute a real crisis for Palestinian telecommunications companies, forcing internet service providers to “provide the competent authorities with all necessary data and information that will assist in uncovering the truth, at the request of the prosecution or the competent court”, as well as “to block link or a site acted on orders”, in addition to “retention of information about subscriber for a period not less than three years”.

This article undoubtedly loses the confidence of the Palestinians in their local companies who are forced to provide the State Authorities with their personal data that might endanger the citizens and to lose their right to privacy, which may lead some to terminate the contract with these national companies and to resort to Israeli companies that would keep such information confidential.

Article 50 concludes with a series of controversial questions about this law. the article states: “Any person who deliberately refrains from reporting or knowingly falsely reported on cyber-crimes shall be liable to a term not less than six months’ imprisonment and a fine of not less than two hundred Jordanian Dinars and not more than a thousand Jordanian Dinars, or with one of these two penalties”. 

Therefore, if the user reads or views a material considered as a threat to the safety and security of the Authorities, he should be prepared to face the penalty of imprisonment or fine or even both.

Articles 43 and 44 also raised a lot of controversy within this law, these laws are related to the agreements concluded between Palestine and foreign countries, including “Israel” on the need to provide each country with other information that is obtained and represents a threat or a danger to it, and therefore the Palestinian Authority is obliged under this law, if they reach any intel from websites concerning Tel Aviv and its safety, to supply them, which will negatively affect the Palestinian cause, prompting some to say that this law is a minefield. 
Article 44 is considered the most dangerous, where the Palestinian Authorities must hand over any Palestinian who criticizes “Israel” or calls for resistance or to address the violations committed against the Palestinians, to the Israeli Authorities, if requested by the Israelis.

In the light of these vague and unjust laws against the rights and freedoms of citizens in general and journalists, activists and media workers in particular, we in the legal department of the Journalist Support Committee (JSC) after taking the views of legal advisers, technicians and academics, these laws were refuted for the following considerations:

  1. The decree-law of the cyber-crimes was issued in complete secrecy and was published in the official gazette without consulting the Supreme Judicial Council in a matter directly related to the public prosecution, courts, and penal procedure, in an explicit contradiction to the provisions of article 100 of the Basic Law, and if the executive authority is able singly to regulate the work of the courts and the Public Prosecution to amend the procedures and guarantees in accordance with the law, this includes the distribution of competencies between the two parties and the procedures followed and methods of appeal or review, the question here is why the executive branch will no longer be able to amend the Judicial Authority Law relating to the structure of the judiciary and the public prosecution without consulting the Supreme Judicial Council.
  2. The decree-law may not be issued except on conditions that are in accordance with article 43 of the Basic Law which states that the president may not issue decisions except in cases of necessity that cannot be delayed and to be presented to the legislative council in its first session after the decision, and in this case the issued decree-law is invalid and should not be acted upon.
  3. The cybercrime law should be repealed as it goes beyond the limits of so-called cyber-crime to add ordinary crimes, without awareness, in almost all areas, which is unconstitutional.
  4. The Penal Code amends the code of criminal procedures to end or exceed the constitutional safeguards of the defense and to change the legal status of the prosecution from an adversary in criminal proceedings to a judge, jury, and executioner, which is unconstitutional.
  5. The law grants the Public Prosecution special and unjustified competence over the private life of individuals, and if most of the people’s lives are actually in the cyberspace, this means that this area does not confer private life, but on the pretext of preventing the risk of being breached (and the public authority is not prepared or able to deter it) will put individuals at risk of their arbitrary actions, which is unconstitutional.
  6. The law grants the Public Prosecution unconstitutional competence that is flawed and contrary to international norms by blocking websites and closing them without guarantees of prohibiting arbitrariness or even to demand the presence of judicial ruling in accordance with the Basic Law.
  7. The law is full of unconstitutional terms that have been removed from the modern law.
  8. There is no need to issue the decree-law because e the purpose of issuing is unrealistic and unnecessary or verifiable in any form.
  9. The exaggeration in talking about its benefits, which is already non-existent or real.
  10. The law was promulgated by an entity that lacked the competence to issue, for this law is critical because it concerns the people, the source of authority, and by this law, it violates the rights of the people rather than serving them and their interests. Many provisions of the exceptional mandate are being exploited abruptly.
  11. The procedures for its issuance were abnormal and did not reach the limit of exceptional measures, but exceeded them to the limit of treachery at midnight.
  12. There are a contradiction and a conflict of interest in both the process of issuance and in its implementation.
  13. Some provisions of the decree-law confuse and do not distinguish between a felony and an offence. For example, article (60) of the decree-law stipulates that the penalty for anyone who produced or uploaded through the internet, of short-term hard labour and a fine not less than five thousand Jordanian Dinars. Short-term hard labour is a felony, whereas the fine is an offence whatever its value, consequently, this crime cannot be described as a felony and at the same time it cannot be described as an offence, which raises a problem in the tribunal’s jurisdiction, and significantly affects the provisions of recidivism and repetition provided by draft itself.
  14. The decree-law is a mirrored law from oppressive states that don’t respect their people and doesn’t relate to comparative law of civilized nations in any way, shape or form, and using the terms human rights and claiming its protection and safeguard whether in cyberspace or ordinary domain through such laws is in fact an exploitation of sacred values to achieve narrow purposes.

All this means that the drafted law does not relate to protecting or reducing hacking and theft of data, but a new dangerous and unprecedented form of encroachment by the authorities on rights and freedoms. Therefore, the Journalist Support Committee (JSC) calls on the Palestinian Authority:

  1. To refrain from violating public rights and freedoms. Every judge and every conscientious employee who has sworn to respect the Basic Law must reject the application of the cybercrime law, for it was promulgated in a complete violation of the Basic Law in terms of competent body of legislation.
  2. The unprecedented interference of the security authorities in civil life, and the promulgation of regulations and procedures aimed at restricting the work of civil societies, in addition to political arrests, restrictions on the right to freedom of opinion and expression and the detention of journalists.
  3. The immediate cessation of implementing the law, and to re-discuss it with the competent authorities, especially human rights organizations, civil society organizations and internet and communication service providers, in order to reach a cyber-crime law in conformity with the amended Basic Law and International Human Rights Standards.  


Journalist Support Committee - Palestine
19 August 2017