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Legal Framework of Online Media: A Perspective for Online Journalists, Online Activists, and Other Netizens in Arab Countries

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This is draft chapter of a report that was never published for the Doha Centre for Media Freedom on the emerging legal framework for free expression online in the Arab region. It is currently being updated as a part of SMEX Arab Digital Rights Datasets initiative. Comments welcome.

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Legal Framework of Online Media: A Perspective for Online Journalists, Online Activists, and Other Netizens in Arab Countries

  1. 1. Legal Framework of Online Media: 
 A Perspective for Online Journalists, Online Activists, and Other Netizens in Arab Countries Commissioned by: Doha Centre for Media Freedom Written by: Jessica Dheere, Social Media Exchange April 24, 2014 DRAFT 04.24.14 Graffiti by iheartthestreet.
  2. 2. Abstract! ! The rapid adoption of digital and social media in the Arab world since 2011 has generated more public expression from a broader cross-section of Arab society than ever before. This expression includes speech critical of Arab regimes, who in response, are tightening restrictions on online expression, often through the adaptation of existing laws and the darting of new ones. These restrictions, which are often ill-defined and unpredictably applied, have led to an increase in the detention and prosecution of professional and citizen journalists, activists, and ordinary citizens, often under anti-terrorism and anti-cybercrime laws which transforms their expression into more serious crimes. At the same time, while governments continue to practice both censorship and surveillance; they are justifying recent enhancements to the latter in the name of national security. The result is a legal framework that threatens not only to compromise gains earned during the 2011 revolutions but also to destabilize the region as conditions that precipitated the revolutions and uprisings in the first place are recreated and in some places exacerbated. Despite the challenges and risks presented by these negative trends, civil society groups are mobilizing to reframe conversations about digital restrictions as movements for digital rights at both national and regional levels, in hopes of securing an enabling environment for citizen-led advocacy and governance well into the future.! ! ! !1
  3. 3. Legal Framework of Online Media: A Perspective for Online Journalists, Online Activists, and Other Netizens! ! By Jessica Dheere ! BIO: Jessica Dheere is a journalist and executive director of Social Media Exchange, a Beirut–based NGO that offers training and consulting in the strategic use of new media and advocates for digital rights. Introduction! The Internet has become a refuge, a frontier, and an armory for journalists and activists everywhere. Reporters and organizers working in the public interest have gone online seeking new spaces, avenues, and tools to investigate, contemplate, expose, and confront abuses of power. In the Arab world, this movement from analog to digital has initially culminated in a rising tide of online communication marked by the 2011 revolutions and uprisings, as people used social media as a channel both to signal their discontent and to coordinate and document their action on the streets. ! While the resulting concentration of online expression in the Arab region has since become more fragmented and disperse, the volume of online speech has not receded. According to the Arab Social Media Report , more than 125 million people in the region access the Internet, and growth rates across the1 region average about 30 percent a year. Further, more than 53 million people in the region actively use social media, meaning that they are not only consuming content, but they are also producing it. Never before has so much speech been so public, so diverse, and so accessible. ! Unfortunately, this proliferation of speech has also led to increased detentions and prosecutions of journalists, activists, and other Internet users for the things that they say online. Pushed out of their comfort zones, Arab governments accustomed to containing speech are reacting by reinforcing the bulwarks of their control. The result is an emerging legal framework for online media that instead of becoming a lever for more just and equitable—and therefore more stable and secure—societies is being designed to limit freedom of expression and related rights, including freedom of assembly and rights to privacy and information.! Rather than live up to their international covenants and constitutions that guarantee these rights and freedoms, regimes are applying existing penal codes and outdated press and publications laws to tighten restrictions on online speech. More worrying, they are increasingly justifying these actions as essential to national and cyber security as well as enhancing censorship, monitoring, and surveillance. In short, Arab governments are reproducing many of the conditions that led to the revolutions and other resistance movements in the first place. ! Surprisingly, the trend to restrict rather than expand expression seems to be as viral as social media itself, affecting post-revolutionary republics, decades-old dynasties and dictators, and even the so- called freer countries such as Lebanon and Jordan alike. Such convergence can also be seen in the types of people affected. No longer are journalists and organizers the key targets; now any person who can publish to the Internet—whether on a popular news site, personal blog, Facebook profile, Twitter feed, YouTube account, or even on a mobile phone—risks suffering the consequences.! Nevertheless, the heightened scrutiny and narrowed paths for expression and criticism haven’t deterred journalists, activists, and ordinary users across the region from making public their disapproval, !2 Salem, Fadi, and Sara Alshaer. “The Arab World Online: Trends in Internet Usage in the Arab Region.” Arab Social Media Report, p. 1. April1 22, 2013. http://www.arabsocialmediareport.com/News/description.aspx?NewsID=11&PriMenuID=15&mnu=Pri.
  4. 4. often with the very digital tools and online speech governments hope their policies will neutralize. All too aware of the consequences of losing their enabling environment to restricted speech, netizens from Morocco to Kuwait, Iraq to Sudan are mobilizing, often successfully, to demand a role in shaping the digital rights landscape itself. ! On the following pages, an attempt will be made to define this emerging de facto legal framework and identify current patterns affecting freedom of expression online across the Arab region. Examples of laws and their application, which come from more than three-quarters of Arab League member states and are derived from a variety of legal traditions, will be used to illustrate these patterns. The intent is not to provide an exhaustive look at either the individual national legal frameworks or to catalog all the relevant cases, but rather, to empower media practitioners of all types—journalists, activists, and other netizens— with knowledge of the dominant features of the legal environment so that they might avoid unnecessary detention while, in the best of worlds, exploring new ways to challenge the status quo and even advocate for digital rights. It is also worth noting that while this chapter focuses on legal methods of limiting expression, it also implicitly acknowledges that governments frequently use extralegal methods to reinforce the frameworks in question. ! A De Facto Framework that Limits Online Speech! The legal frameworks for online media and expression in the Arab world derive from multiple legal traditions, including those left behind by the Ottomans, British, and French, as well as Islamic law and in the case of Iraq, U.S. law. Like similar frameworks elsewhere, they comprise non-binding international charters and covenants, such as the International Covenant on Civil and Political Rights (ICCPR), to which more than half of Arab nations are signatories ; national constitutions, laws, and penal codes; as2 well as executive decrees and administrative practices, including censorship and surveillance. What distinguishes these legal structures from their counterparts in countries that respect press freedom, says Mohammed Qutaishat, a media lawyer in Jordan who provided expert review of this chapter, is that “Arab legislative policies for the media sector are [designed] to protect the government from the media” not to3 protect journalists or the public from abuses of power that can persist if unexposed.! The foundation of this framework rests on existing laws governing press and publications that mandate licensing of journalists, as well as on articles in national penal codes that criminalize defamation, insults, harming the economy, and the spread of false news, among other forms of speech. Even mundane regulatory laws, such as telecom and internet regulations, often include articles criminalizing expression over specific types of channels, as do new anti-terrorism and anti-cybercrime laws, which are fast becoming a part of the legislative landscape journalists must consider when publishing online. Reinforcing these frameworks are pervasive and long-lived censorship, a priori and after the fact, and both human- and technology-enabled surveillance practices.! Before discussing recent trends in the application of the Arab legal framework for expression to online expression, however, we must question the notion of whether a regional legal framework exists at all. Three factors in particular might lead us to believe that one does not. First, the scope of jurisdiction of Arab constitutions and laws governing expression is national. While it’s useful to compare and contrast these national frameworks, they are not components of a larger, coordinated system. ! Second, constitutional supremacy—the notion that no subsequent law can be made that abridges freedoms and rights granted in a constitution—is in theory implicit in the legal frameworks in the Arab !3 “Chapter IV, International Covenant on Civil and Political Rights.” United Nations Treaty Collection, December 16, 1966. https://2 treaties.un.org/pages/ViewDetails.aspx?mtdsg_no=IV-4&chapter=4&lang=en. Conversation with Mohammed Qutaishat, Doha, Qatar, January 27, 20143
  5. 5. region. Egypt’s Supreme Constitutional Court clarified this principle in 1996, stating “The human rights and fundamental freedoms—first and foremost the right of expression—must be seen as supreme values, these rights must be not be divisible nor fragmented or worn out with restrictions that impairs them.” In4 practice, however, constitutional supremacy is often violated as laws are passed that directly contradict guarantees, weakening these foundational documents and, at worst, rendering them as little more than window-dressing tools. Even the possibility of challenging laws based on their unconstitutionality is compromised by the fact that most constitutional courts, where they exist, do not accept challenges from ordinary citizens. ! Third, the primary purpose of a legal framework is to enable the members of society to self- regulate their behavior by encoding consistent, predictable expectations for that behavior as well as necessary and proportionate responses to behavior that falls outside those boundaries. By this definition, few if any countries in the Arab region have legal frameworks for expression that model these intentions. Instead, national frameworks across the region—independent of the type of government and to varying degrees—are characterized by internal contradictions, elastic definitions, unpredictable and frequently abusive applications, and opaque processes for the development of legislation. ! The cumulative result of these shared patterns, as explained in more detail below, is a de facto regional framework of legal practices that prevents citizens from predicting the relationship between actions and consequences and strongly favors self-censorship as a means of mitigating risk. These practices, in turn, produce a mediated environment defined by distrust, apprehension, and abstract expression rather than by the free and vigorous exchange of ideas.! Internal Contradictions and Overlaps! While many Arab constitutions promise freedom of expression and the press, these freedoms are guaranteed only under certain conditions. These limits may be alluded to in the constitution or made explicit in the penal code or other laws of the land. Articles 23 and 24 of Bahrain’s 2002 constitution are typical. They state:! ! Article 23! Freedom of opinion and scientific research is guaranteed. Everyone has the right to express his opinion and publish it by word of mouth, in writing or otherwise under the rules and conditions laid down by law, provided that the fundamental beliefs of Islamic doctrine are not infringed, the unity of the people is not prejudiced, and discord or sectarianism is not aroused.‑ !5 ! Article 24! With due regard for the provisions of the preceding Article, the freedom of the press, printing and publishing is guaranteed under the rules and conditions laid down by law. !6 ! In both clauses “under the rules and conditions laid down by law” gives the government wide latitude both to interpret and to restrict these freedoms. The Moroccan constitution of 2011 similarly protects citizens’ “freedom of opinion and expression in all its forms,” without caveat, but continues to7 !4 Supreme Constitutional Court, April 6, 1996, Group Provisions of Part VII of the Court, page 5514 https://en.wikisource.org/wiki/Constitution_of_the_Kingdom_of_Bahrain_(2002)#Article_23_.5BExpression.5D5 https://en.wikisource.org/wiki/Constitution_of_the_Kingdom_of_Bahrain_(2002)#Article_24_.5BPress.5D6 “Freedom on the Net 2013,” Freedom House, p. 548. October 3, 2013. http://www.freedomhouse.org/report/freedom-net/freedom-7 net-2013#.Ux4gDuddWi8.
  6. 6. apply laws that predate its adoption, such as the 2002 Press Code and the 2003 Anti-Terrorism Law, and to introduce new laws, such as the recently rebuffed Code Numérique , which do attempt to limit speech. !8 Another contradiction faced by both the judiciary and citizens across the region are outdated media laws drafted in a pre-Internet era. These laws don’t take into account technical protocols and functions or communications modes inherent to online media, such as hyperlinking, the permeability of boundaries as a website hosted in one country draws users from others, the convergence of channels, or the viral nature of user-generated content. Ultimately, this leads not only to inconsistent application of existing laws and precedents but also to absurd approaches to regulation that betray ignorance among policymakers and enforcers about the intrinsic nature of the Internet. ! For example, a recent report claimed Saudi Arabia was planning to require users to obtain a permit to share videos on YouTube. Similarly, a defeated draft law in Lebanon proposed registration of9 websites under the name of an official manager, who would qualify only if he or she has never been convicted of a misdemeanor or a felony and “does not manage more than one website,” among other10 criteria. Absurdity, however, does not keep the threats from being realized. In Qatar, the poet Muhammad Rashid al-Ajami, known as Ibn al-Dheeb, will serve 15 years in prison—reduced from an initial sentence of life imprisonment —after a video of him reciting a poem at a private gathering was uploaded to11 YouTube without his knowledge. !12 In addition, the passage of new laws, which often neither acknowledge nor explicitly supersede their forerunners or complements, frequently produces overlapping jurisdictions and confusion. In Egypt, for example, more than 70 articles in 8 laws restrict freedom of expression. Trying to be mindful of all13 the restrictions is “like walking through a minefield,” according to one Egyptian journalist. Elsewhere,14 different punishments are stipulated for similar crimes in different contexts, as articles resurface practically copy-pasted from one law to another. !15 ! Vague Language! A second shared pattern across the region is the opportunistic use of imprecise language to expand what constitutes a crime. Laws governing expression, explains Mohamad Qutaishat, a media lawyer in Jordan, are “premised on ambiguity and on hiding a number of issues through legal language that is very vague and can be explained differently” depending on the whims of the authorities. !16 Highly subjective phrases such as “social principles or values,” “insulting the king,” or “harming foreign relations” become catch-alls for speech that attempts to express any kind of dissent or criticism. Even terms to describe the media themselves are often vague. Recent amendments to Jordan’s !5 Achour, Fatima. “Moroccans Denounce New Information Draft Law.” Al-Monitor, February 10, 2014. http://www.al-monitor.com/pulse/culture/8 2014/02/morocco-new-information-draft-law-criticism.html. Saul, Heather. “Is Saudi Arabia Planning to Censor YouTube?” The Independent, December 17, 2013. http://www.independent.co.uk/news/9 world/middle-east/is-saudi-arabia-planning-to-censor-youtube-9010434.html. Translation of the proposed law by Joseph Choufani (http://lira.ontornet.org/read-the-law/)10 “Qatar Court Upholds Poet’s Jail Sentence.” Al Jazeera English, October 21, 2013. http://www.aljazeera.com/news/middleeast/2013/10/qatar-11 court-upholds-sentence-against-poet-20131021123723850815.html. “Lawyer: Qatari Poet Sentenced to Life in Prison Is ‘Gulf’s Mandela’.” Doha News, December 3, 2013. http://dohanews.co/lawyer-poet-12 sentenced-to-life-in-prison-is-qatars/. Mansour, Sherif. “On the Divide: Press Freedom at Risk in Egypt” p. 5. Committee to Protect Journalists, August 14, 2013. https://cpj.org/13 reports/2013/08/on-divide-egypt-press-freedom.php. Ibid.14 Conversation with Mohamed Qutaishat15 Ibid.16
  7. 7. constitution refer simply to “mass media” and “other means of communication” leaving a wide berth for interpretation and abuse. !17 Penal codes and press and publications laws frequently prohibit both citizens and journalists from levying “criticism” and “insults” against kings, presidents, armies, government officials, and/or courts. The internationally recognized tests for differentiating defamation from permissible insults or criticism, however, are rarely applied. Even the verified truth of a criticism is in many countries not a legitimate defense of its expression by a journalist or ordinary citizen. !18 Other broad categories of prohibited speech include “immoral content” and “defamation of19 religion” or blasphemy. In a recent case in Kuwait, for example, Abdul Aziz Mohamaed El Baz, an expatriate Egyptian, was accused in official documents from the Electronics and Cyber Crime Combating Department of being “an atheist and an infidel” and charged with contempt of religions and attempting to spread atheism through his blog. He served a sentence of one year of hard labor, paid a $270 fine, and20 was deported back to Egypt. !21 Opaque, Politically Driven Legislative Drafting Processes! A third common aspect of Arab legal frameworks that significantly affects online media is the opacity of the legislation drafting process. In many Arab countries, releasing draft laws for public comment or review, even by experts, is not an accepted part of the legislative process. While this lack of transparency can be interpreted as a manifestation of “authoritarian tendencies,” it can also “be due to inexperience and haste rather than calculated action,” say Abir Awad and Tim Cook, writing about the media of Iraq, where an ill-conceived cybercrime law was recently defeated. “New drafts of laws are created in such a long- winded and secretive way that a law could potentially be drafted without any subject specialists being consulted.” !22 A proposed media law in the United Arab Emirates died in 2009 without a draft ever being made public, according to Matt J. Duffy, a journalism professor and author of a recent Doha Centre for Media Freedom (DCMF) report on media laws in the six countries of the Gulf Cooperation Council. While23 provisions of a draft cybercrime law in Qatar have been reported by the Qatari News Agency, that draft has also not been released, despite repeated calls from DCMF and other organizations. “Ideally, the24 drafting process would include government, the private sector, and academics,” says Fahd Batayneh, an Internet governance expert and current stakeholder engagement coordinator for the Middle East of the Internet Corporation for Assigned Names and Numbers (ICANN). “But does this happen? Sadly, no.” !25 Even when draft laws are released to the public, as was the previously mentioned Code Numérique in Morocco , they’re released as fully formed documents, not drafts meant to accept input.26 Speaking at a recent Arabloggers meeting in Amman, Abed Shamlawi, president of the ICT Association of Jordan (INT@J), explained that it can take between three to six years to write and pass a law in Jordan, !6 Freedom of the Net, p. 43317 GCC Media Laws, p. 1318 Freedom on the Net, p. 483.19 https://www.change.org/petitions/government-of-kuwait-free-humanist-atheist-activist-abdel-aziz-mohamed-albaz20 Confirmed through a private Facebook message.21 Awad, Abir and Tim Eaton. “The media of Iraq ten years on,” p. 27. BBC Media Action, March 2013. http://www.bbc.co.uk/mediaaction/22 publicationsandpress/policy_media_iraq.html. Conversation with Matt J. Duffy on January 10, 2014. Washington, D.C.23 “Draft cybercrime law threatens online expression,” Doha Centre for Media Freedom, May 30, 2013. http://www.dc4mf.org/en/content/draft-24 cybercrime-law-threatens-online-expression Conversation with Fahd Batayneh on January 23, 2014. Amman, Jordan.25 Fathy, Noha. “Code Numérique ‘Puts the Wind up the Moroccan Online Community.’” 7iber, January 19, 2014. http://7iber.com/2014/01/code-26 numerique-puts-the-wind-up-the-moroccan-online-community/.
  8. 8. emphasizing that if citizens and others want to influence the process, their effectiveness is much higher at the beginning.” !27 ! Ever-Expanding, Ever-Intersecting Red Lines! Like the skewed and intersecting infrared beams that protect precious jewels in heist movies, legislative red lines restricting critical speech have long existed to protect the intangible assets of Arab regimes, such as the reputation of the ruler, the dignity of the state, and national security. As in the movies, those lines aren’t always visible until after they have been crossed and triggered alarms. Yet since 2011, the increasingly frequent detention and prosecution of journalists and other netizens for online speech, combined with the passage of new laws and amendments specifically meant to curtail and further criminalize that speech, has made these matrices even denser, broader, and more impenetrable. As a result, it virtually impossible for journalists to serve the public interest by reporting on abuses of power, or for other citizens, as Bahraini blogger Mahmoud Al Yousef once said, to exercise their “civic responsibility of criticism.” !28 Two recent attempts to map these red lines illustrate the challenges journalists, activists, and ordinary Internet users face navigating these legal labyrinths. In both a 2013 article for the website Jadaliyya, and the 2013 DCMF report Media laws and regulations of the GCC countries, Matt J. Duffy outlined major legal impediments to press freedom in the Arab world, including the criminalization of insults, spreading false news, harming public order, and defamation. Last November, Jordanian citizen29 media collective and digital rights watchdog 7iber.com took another approach, visualizing the detention and prosecution of citizens under articles that circumscribe speech in the kingdom. The result was an infographic titled “Legislative Limits on Freedom of Expression” that, like Duffy, listed types of30 offenses—including lèse-majesté (insult of the ruler); religion; dignity of the state; libel, slander, and defamation; disturbing diplomatic relations; undermining the regime; and public morals—drawn from the penal code, the press and publications law, and the telecommunications law, as well as a special State Security Court (SSC). Comparing the two approaches shows not only the common red lines across the region but also how they are being applied to ordinary citizens and journalists for both online and offline expression.! Duffy calls defamation “one of the biggest problems.” In countries that support press freedom,31 defamation is strictly defined as occurring when a false accusation made to a third party damages a person’s reputation, and is treated as a civil offense. All Arab countries, however, criminalize defamation , usually under penal codes and press and publications laws, and increasingly under anti-32 terrorism and anti-cybercrime laws as well. What’s more, both the burden of proving that the accusation was false, directed at an individual, and caused real damage (not simply an injured ego) is rarely upheld, creating a system where simply challenging an individual’s or even an institution’s honor can be grounds !7 “Does Internet Governance Matter in the Arab World? panel discussion at Arabloggers meeting, Amman, Jordan, January 23, 201427 “GCC media laws,” p. 14.28 Duffy, Matt. “Despite Arab Uprisings, Press Freedom Still Elusive.” Jadaliyya, June 5, 2013. http://www.jadaliyya.com/pages/index/12035/29 despite-arab-uprisings-press-freedom-still-elusive. Da’nah, Hussam and Reem AlMasri, “Infographic: Legislative Limits on Freedom of Expression in Jordan,” 7iber, November 10, 2013. http://30 7iber.com/2013/11/infographic-legislative-limits-on-freedom-of-expression-in-jordan/ Conversation with Matt. J. Duffy31 A draft media law in Lebanon proposes eliminating precautionary detention and decriminalizing media offenses, including defamation.32
  9. 9. for imprisonment and heavy fines. This has a significant chilling effect on journalists who rather than covering corruption shy away from exposing wrongdoing, especially if it involves public officials and bodies, which under many penal codes actually aggravates the crime. “If you can be prosecuted for33 damaging somebody’s honor,” explains Duffy, “you can’t speak freely about anything.” !34 As more bloggers, citizen journalists, and even rap artists take to the Internet to fill the gap left by what Duffy calls a “timid press,” they are increasingly finding themselves in the same crosshairs—even35 in the freer countries in the region, such as Tunisia and Lebanon. On February 13, 2014, for example, a Lebanese judge found 27-year-old web developer Jean Assy guilty of defamation of the Lebanese president Michel Suleiman and sentenced him to two months in prison. It was the first prison sentence in 20 years handed down for defamation under the country’s 1962 Press and Publications law, which was36 expanded in 2011 to cover all electronic publications. Later, Suleiman forgave Assy via a Facebook37 post , but it’s unclear if his statement constituted an official pardon.!38 Last year, the Tunisian government issued and later rescinded a travel ban for investigative journalist and blogger Olfa Riahi, who posted on her blog with supporting documents about a then- minister’s misuse of public funds. Riahi was charged with “defamation of a public official” and39 “harming others or disrupting their lives through public communications networks” under relevant articles of the penal and telecommunications codes, respectively. Inexplicably, she was not charged under the press law, which had been amended to recognize bloggers as journalists and to remove prison sentences40 for defamation after the 2011 revolution. Despite the fact that the minister resigned soon after the story41 broke and is facing corruption charges, Riahi is still accused of defamation and many of the articles covering defamation laws from the Ben Ali regime are still in force.! Closely related to defamation laws are insult and false news laws. Insult laws most often ban criticism against rulers, kings, and presidents and other state institutions and emblems, such as the army or the national flag. Laws against “spreading false news” impossibly try to mandate truth and are often used to silence and punish journalists who spread news that doesn’t conform to a specific political frame. In a recent glaring example, the prosecutor’s charge sheet in Egypt’s case against 20 Al Jazeera and other journalists, presumably for covering the Muslim Brotherhood, details how “the media material confiscated from the defendants…contains video clips that were altered and edited, using a high-tech program and editing devices, and that these scenes are false and damage the country’s national security.”42 Frequently, insult and false news laws, like defamation, blasphemy, and other red lines, appear repeatedly throughout a country’s laws in different contexts.! While no aggregate tallies exist, there is a general consensus that across the region “Arrests for insult charges have increasingly been directed at social media activists rather than journalists,”43 !8 Duffy, Matt. “Despite Arab Uprisings, Press Freedom Still Elusive.” Jadaliyya, June 5, 2013. http://www.jadaliyya.com/pages/index/12035/33 despite-arab-uprisings-press-freedom-still-elusive. Conversation with Matt. J. Duffy34 Duffy, Matt.“Muftah - GCC Media Regulations Lead to Timid Press.” Muftah, December 17, 2013. http://muftah.org/gcc-media-regulations-35 lead-to-timid-press/. http://www.al-akhbar.com/node/20056836 Melki, Jad, Yasmine Dabbous, Khaled Nasser, and Sarah Mallat. “Mapping Digital Media: Lebanon,” p. 87. March 15, 2012. http://37 www.opensocietyfoundations.org/reports/mapping-digital-media-lebanon. https://www.facebook.com/photo.php?fbid=10152277834129314&set=a.415975319313.206596.19636999313&type=1&stream_ref=1038 Greenslade, Roy. “Tunisian Blogger Faces Prison.” Guardian.com, March 20, 2103. http://www.theguardian.com/media/greenslade/2013/mar/39 20/press-freedom-tunisia. Freedom on the Net, p. 715.40 “Tunisia: Repeal Criminal Defamation Law | Human Rights Watch.” Human Rights Watch, March 20, 2013. http://www.hrw.org/news/41 2013/03/20/tunisia-repeal-criminal-defamation-law. El Sheikh, Mayy, and Mackey, Robert. “The Lede: Charge Sheet Against Al Jazeera Journalists in Egypt.” New York Times, January 30, 2104.42 http://thelede.blogs.nytimes.com/2014/01/30/charge-sheet-against-al-jazeera-journalists-in-egypt/. “Despite Arab Uprisings”43
  10. 10. according to Duffy. New insult laws in Kuwait and Bahrain, for example, mandate lengthy prison sentences to prosecute those netizens who insult the emir or the king. In Sudan, blogger and activist Tajeldin Arja has been detained since December 24, 2013, and is being held in solitary confinement and beaten, for criticizing the Sudanese and Chadian presidents at a press conference in Khartoum. In44 Kuwait, last year a teacher was sentenced to 11 years in prison for a tweet “deemed insulting to the emir and calling for the overthrow of the regime.” She and several others charged with insulting the emir45 were later pardoned. Bahrainis, however, have not been so fortunate. After changes implemented this46 year, insulting the king, the flag, or the national emblem “in any kind of public manner” may now earn offenders up to seven years in prison and a $26,500 fine. !47 Critical Speech: A First Step on the Slippery Slope to Terrorism and CyberCrime! Adding insult to injury for people wanting to express themselves over the Internet and mobile phones, articles in a new layer of counter-terrorism laws is rapidly normalizing the practice of connecting ordinary critical speech to more serious crimes of “instigating terrorism” or using technology to disrupt public order or national security. The anti-terror laws that post-date the 2011 revolutions and uprisings in many cases aim to stem the flow of mercenaries into Syria and to reinforce the declaration of the Muslim Brotherhood as a terrorist organization. No sooner than they are enacted (and in some cases even48 before), however, they are being abused to prosecute journalists and activists, who now face harsher penalties.! In Morocco last September, well-respected opposition journalist Ali Anouzla, editor of the news website Lakome.com, was arrested and charged under the country’s 2003 anti-terrorism law for linking to the website of Spanish daily El País, which itself had linked to a video purportedly posted by Al Qaeda in the Islamic Maghreb. After being held for more than five weeks in “preventive detention,” Anouzla was released, but he still faces 10 to 30 years in prison on charges including providing “material assistance” to a terrorist organization and “defending terrorist crimes.” !49 Similarly, in Algeria, 24-year-old blogger Abdel Ghani Aloui has been held for months in Serkadji, a high-security prison typically used to incarcerate violent criminals. Arrested in September 2013 for posting caricatures mocking the Algerian president and prime minister, Aloui was initially charged with “insulting the president.” Later a charge of “glorifying terrorism” was added. Another50 blogger, Twitter user, and co-founder of the Bahrain Youth Society for Human Rights, Naji Fateel, was sentenced to 15 years in prison for “the establishment of a group for the purpose of disabling the constitution” under Article 6 of Bahrain’s 2006 Terrorism Act. !51 !9 Mohamed, Usamah. “Sudan: Blogger Remains in Detention for Criticizing Presidents · Global Voices.” Global Voices Online, February 17,44 2014. http://globalvoicesonline.org/2014/02/17/sudan-blogger-remains-in-detention-for-criticizing-presidents/. “Emir Pardons Everyone Jailed for Insulting Him but Law Still Stands.” Reporters Without Borders, August 7, 2013. http://en.rsf.org/kuwait-45 emir-pardons-everyone-jailed-for-07-08-2013,45028.html. “Kuwait to Jail Woman for Tweets against Emir.” Al Jazeera English, June 10, 2013. http://www.aljazeera.com/news/middleeast/46 2013/06/201361014168716717.html. “Bahrain Toughens Penalties for Insulting King.” Reuters. February 5, 2014. http://www.reuters.com/article/2014/02/05/us-bahrain-law-47 idUSBREA140KX20140205. Toumi, Habib. “Kuwaiti MP Proposes ‘anti-Terror’ Law.” GulfNews.com, February 9, 2014. http://gulfnews.com/news/gulf/kuwait/kuwaiti-48 mp-proposes-anti-terror-law-1.1288423. “Obama Must Raise Anouzla Case during King Mohammed VI’s Visit.” Reporters Without Borders, November 20, 2013. http://en.rsf.org/49 morocco-obama-must-raise-anouzla-case-20-11-2013,45483.html. Semar, Abdou. “Four Months in Jail and Counting for Algerian Blogger Who Criticized President,” February 5, 2014. http://50 advocacy.globalvoicesonline.org/2014/02/05/four-months-in-jail-and-counting-for-algerian-blogger-who-criticized-president/. “Digital Citizen 1.3 ‫الرقمي‬ ‫”,املواطن‬ December 10, 2013. http://advocacy.globalvoicesonline.org/2013/12/10/digital-citizen-1-3-human-rights-51 technology-arab-world/.
  11. 11. In just the first two months of 2014, new anti-terrorism legislation has emerged from Egypt, Saudi Arabia, and Kuwait. Article 21 of a draft anti-terrorism bill in Egypt reads: “Anyone who directly or indirectly promotes acts of terror, either verbally or in writing, or through any other means of broadcasting or publishing, or through letters or online websites that others can access, shall be punished by imprisonment for a term not exceeding five years.” New articles introduced into the bill also permit52 state monitoring of internet sites to prevent their being used to commit terrorist acts. !53 A counter-terrorism law signed in December 2013 and published for the first time in January 2014 in Saudi Arabia aims to prohibit Saudis from fighting abroad and supporting terrorism. The law defines terrorism as any act that “destabilizes the society's security or the state's stability or exposes its national unity to harm” or that offends “the nation's reputation or its position,” essentially equating dissent, such as reporting on corruption or calling for reform, with threatening national security. Like the54 Egyptian draft, it “also grants security services broad powers to raid homes and track phone calls and Internet activity.” !55 The Saudi law has spurred similar legislation in Kuwait, penalizing “acts of terrorism, incitement and participation in conflicts outside Kuwait” with imprisonment of up to 20 years. It also prohibits56 “joining the extremist religious and intellectual groups and movements that are classified terrorists locally or regionally, or supporting them or expressing sympathy with them by any means, including providing moral or material support or promoting them or advocating them through writing or otherwise.” While57 the law is directed at reducing mercenary acts, the lack of clear definition of what constitutes promotion or advocacy leaves a wide loophole for abuse.! If It’s Online, It’s Cybercrime! With cyber attacks on the rise globally and because of their cross-border nature, the development of cybercrime laws to combat fraud, data theft, and human trafficking committed using computer networks, has emerged as a priority for governments worldwide. While no international definition of cybercrime exists, international standards do recognize that cyber-security should be implemented “in a manner consistent with the values recognized by democratic societies, including the freedom to exchange thoughts and ideas, the free flow of information, the confidentiality of information and communication, the appropriate protection of personal information, openness and transparency.” !58 Despite this understanding, writes the UN Special Rapporteur on freedom of expression in 2011, “legitimate online expression is being criminalized” simply because it’s transmitted over Internet and mobile channels in laws that are often “vague and overly broad and are therefore open to arbitrary and subjective interpretation.” Article 31 of the 2014 Egyptian constitution offers a prime example. It states:59 !10 Al Qaddous, Sherif. “The War on Journalists.” Mada Masr, February 1, 2014. http://www.madamasr.com/content/war-journalists.52 “Netizen Report: Egypt and Saudi Suppress Speech With Terror Laws,” February 5, 2014. http://advocacy.globalvoicesonline.org/2014/02/05/53 netizen-report-egypt-and-saudi-suppress-speech-with-terror-laws/. Ibid.54 Batrawy, Aya. “Saudis: Anyone Who Demands Reform Or Exposes Corruption Is A Terrorist.” The Huffington Post, February 3, 2014. http://55 www.huffingtonpost.com/2014/02/03/new-saudi-counterterrorism-law_n_4716590.html. El-Gizuli, Jamila. “Kuwait’s Counterterrorism Draft Law.” Muftah.org, February 11, 2014. http://muftah.org/kuwaits-counterterrorism-draft-56 law/. Toumi, Habib. “Kuwaiti MP Proposes ‘anti-Terror’ Law.” GulfNews.com, February 9, 2014. http://gulfnews.com/news/gulf/kuwait/kuwaiti-57 mp-proposes-anti-terror-law-1.1288423. “Freedom of expression and ICTs: Overview of international standards,” p. 26. Article 19, December 2013. http://www.article19.org/data/files/58 medialibrary/37380/FoE-and-ICTs.pdf. Ibid. p. 2559
  12. 12. “Cyberspace security is an essential component of the economic system and national security. The state shall commit to taking all the necessary procedures to protect it, as regulated by the law.” !60 Several Arab countries have cybercrime legislation on the books, including Jordan, Oman, Saudi Arabia, Sudan, Syria, and the United Arab Emirates. Qatar and Bahrain currently have draft laws under consideration. Among clauses that legitimately criminalize use of the Internet for human trafficking, extortion, “introducing viruses to a system,” fraud, and the unauthorized trade in weapons and61 antiquities, most of these laws include articles that also re-criminalize critical expression if it occurs on online. ! For instance, a 2012 update of the 2006 Emirati cybercrime law “stipulates punishments for any person creating or running an electronic site to publish, online or through any information technology means, any programmes or ideas which would promote disorder, hate, racism or sectarianism and damage national unity or social peace or damage public order and pubic [sic] decency,” among other familiar refrains, such as damaging “the reputation or the stature of the state or any of its institutions,” calling for demonstrations without authorization, providing “inaccurate information,” or committing libel or62 slander. One of the articles of the only partially released Qatari draft law proposes punishing “anyone who infringes on the social principles or values or otherwise publishes news, photos, audio or visual recording related to the sanctity of the private and familial life of persons even if they were true, or infringes on others by libel or slander via the Internet or other information technology means.”! To date, fewer netizens have been prosecuted under counter-cybercrime laws than under similar articles in penal codes, press and publications laws, and anti-terrorism laws. In May 2013, however, two Emirati citizen journalists, Abdullah Al-Hadidi and Walid Shehhi, were convicted under Article 28 of the cybercrime law for tweeting information about the trial of the UAE 94, a group of reform activists with links to the Muslim Brotherhood. Article 28 “stipulates penalties of imprisonment on any person63 publishing any information, news, caricatures or any other kind of pictures that would pose threats to the security of the state and to its highest interests or violate its public order.” Oman and Sudan have also64 65 convicted social media users under cybercrime laws.! Exchanging Censorship for Surveillance! Despite constitutional promises of free speech and privacy, censorship and surveillance—and the continuous spectrum of filtering and monitoring between them—have long aided regimes in their attempts to control the Arab internet. Censorship of types of online content, notably pornography and political speech; of international social media platforms, such as Facebook and YouTube; and of specific websites, often about news or human rights, is a fact of life in many parts of the region, especially in GCC countries, Sudan, and Syria. Meanwhile, once-secret surveillance apparatuses in Tunisia, Egypt, and Libya—with rooms full of monitoring equipment and dossiers now documented in accounts and !11 “Unofficial Translation of Egypt’s 2013 Draft Constitution.” Mada Masr, January 13, 2014. http://www.madamasr.com/content/2013-draft-60 constitution. O’Connell, Nick. “Developments in the UAE Cyber Crimes Law.” Al Tamimi & Company, May 2013. http://www.tamimi.com/en/magazine/61 law-update/section-5/may-5/developments-in-the-uae-cyber-crimes-law.html. “Full Text of UAE Decree on Combating Cyber Crimes.” GulfNews.com, November 12, 2012. http://gulfnews.com/news/gulf/uae/government/62 full-text-of-uae-decree-on-combating-cyber-crimes-1.1104040. “Three Netizens Still Held for Tweeting about UAE 94 Detainees.” Reporters Without Borders, September 8, 2013. http://en.rsf.org/united-63 arab-emirates-three-netizens-still-held-for-08-09-2013,45149.html. “Digital Citizen 1.1 ‫الرقمي‬ ‫املواطن‬ - Global Voices Advocacy,” September 16, 2013. http://advocacy.globalvoicesonline.org/2013/09/16/digital-64 citizen-1-1/. Freedom on the Net, p. 67465
  13. 13. photographs—offer a picture-by-proxy of intelligence gathering methods elsewhere. Even trying to avoid surveillance, through encryption or other methods, is illegal in some countries. !66 Neither the exposure of such data-gathering methods nor the intractable volume of data generated by social media has neutralized the resolve of governments—even those known for their public support of free expression—to collect information about who is saying what. Quite the opposite: many governments are dulling the already blunt instrument of censorship in favor of more incisive means of controlling expression, ever-more pervasive and intrusive surveillance. Not only are technological advances making it easier and cheeper to track people than ever before, but as Egyptian activist Amr Gharbeia has noted, quoting Swedish software developer Ola Bini, “You do not need censorship if you have total surveillance.” !67 In one example, just two days before the first organized protests against the Assad regime in Syria, authorities unblocked YouTube and Facebook, which had been inaccessible for more than three years. While the motivation for opening the platforms is not known, the presumption is that the government allowed access not in a nod to free speech but to make it easier to identify opposition activists. Reports of activists being detained as a result of their online activity and even tortured for their68 Facebook passwords supports the assertion. The tactic is not without precedent, as Zineb Belmkaddem,69 a Moroccan activist who protested against the draft Code Numérique for its restrictions on free expression last December, underlines: “The strategy of the Moroccan authorities has been to ‘watch’ the internet and often times intimidate and humiliate those who criticize the regime, rather than censor,” she said in a70 recent interview.! In another twist on censorship and surveillance, Jordan, last year, having one’s website blocked became a form of punishment. Under 2012 amendments to the country’s press and publications law, failure to register an “electronic publication that engages in publication of news, investigations, articles, or comments, which have to do with the internal or external affairs of the kingdom” may result in the71 website being blocked at the sole discretion of the director of the Press and Publications Department, Fayez Shawabkeh. Registration is costly (about $1,400 or several times more than the cost of hosting the website itself) and onerous, requiring that a website’s editor in chief has been a member of the journalists’ syndicate, the Jordan Press Association, for at least four years. “However, the JPA does not grant membership to journalists who work in online media,” explains a post on the Facebook page of the citizen media organization 7iber.com, one of more than 300 websites blocked last June and July after Shawabkeh exercised his authority. !72 Jordan has also issued new regulations requiring that prepaid SIM card vendors immediately transmit personal data on foreign buyers, among other procedures, which according to the Telecom73 Regulatory Commission is “meant to help curb the use of mobile phones in ways that might disrupt social, economic or security-related issues.” In Jordan, Saudi Arabia, and several other countries,74 !12 Ibid, p. 71766 Amr Gharbeia, speaking on a panel titled “Censorship Doesn’t Matter Anymore; Surveillance Is the Real Problem,” Arabloggers meeting,67 January 23, 2014 Preston, Jennifer. “Syria Restores Access to Facebook and YouTube.” The New York Times, February 9, 2011, sec. World / Middle East. http://68 www.nytimes.com/2011/02/10/world/middleeast/10syria.html. Freedom on the Net, p. 684.69 York, Jillian. C. “Will Morocco Regulate the Internet? An Interview with Zineb Belmkaddem and @IbnKafka.” Electronic Frontier Foundation,70 December 17, 2013. https://www.eff.org/deeplinks/2013/12/will-morocco-regulate-internet-interview-zineb-belmkaddem-and-ibn-kafka. “Jordan: Rescind Order to Block Websites | Human Rights Watch.” Human Rights Watch, June 4, 2013. http://www.hrw.org/news/2013/06/04/71 jordan-rescind-order-block-websites. https://www.facebook.com/notes/7iber/jordanian-government-blocks-7iber/1015147530530234472 Ghazal, Mohammad. “New Regulations on Sale of Prepaid SIM Cards Go into Effect.” Jordan Times, November 18, 2013. http://73 jordantimes.com/new-regulations-on-sale-of-prepaid-sim-cards-go-into-effect. “Digital Citizen 1.3”74
  14. 14. visiting a cybercafe not only requires registration but also means you may be watched, as installation of cameras and requirement to keep browser histories become common. !75 Other tactics aren’t so transparent, but thanks to cases such as that of Ayman Al Bahrawi, who was charged with disrupting friendly relationships with neighboring countries for a message critical of Egyptian general Abdel Fattah Al-Sisi sent over WhatsApp, activists know they’re being watched. “We don’t know where the data’s going,” said Reem Al-Masri at the second Freedom Online conference in Tunis last June. “We know we’re speaking to a third party, because we’re being surveilled [sic]…so we try not to cross the red lines in order not to be arrested or taken into questioning. So we’re adapting to the culture of surveillance.” !76 Similar suspicions abound in Lebanon, where recently issued requirements mandate prepaid mobile lines be registered in conjunction with a mobile phone’s uniquely identifying IMEI number.77 Authorities explain that the requirements were put in place to scuttle the black market in mobile phones, but since they were issued in the wake of an overreaching request by Internal Security Forces for the content of all SMS text messages after the assassination of the police force’s intelligence chief in78 October 2012, many netizens, tweeting under the hashtag #ProtectPrivacy, publicly charged that the measures are more about tracking citizens than solving crimes. !79 Not all tactics are so easily justified or explicitly a part of the legal framework. Government- sponsored spear phishing, in which an email from a trusted or reputable source solicits key information such as usernames and passwords for sensitive accounts, has been documented in Syria, and the80 surveillance software FinFisher has been embedded in emails to activists in Bahrain. Also in Bahrain, a81 new Cyber Safety Directorate with the telecommunications ministry will monitor “websites and social media networks to ensure that they are not used to instigate violence or terrorism and disseminate lies and fallacies that pose a threat to the kingdom’s security and stability.” Perhaps more disturbing, the unit82 also encourages people to report fellow citizens via a phone hotline or e-mail address if they observe outlawed speech. Sudan has similarly recruited hundreds of young college graduates to join its Cyber83 Jihad unit, launched in 2011, that monitors online channels 24 hours a day. !84 As the debate about surveillance takes the stage worldwide in the wake of Edward Snowden's revelations of National Security Agency spying last year, all eyes in the Arab region have turned to Tunisia as a test case for whether Ammar 404, the moniker of what was one of the world’s most notorious surveillance regimes, can transform into a model for free expression, data protection, and online privacy in the region. In June, at the Freedom Online conference, much fanfare surrounded the launch of #404Lab , a hacker space for developing that reclaims the basement of the headquarters of the Tunisian85 !13 Freedom on the Net (Jordan, Saudi Arabia)75 Trenwith, Courtney. “Some Arab Gov’ts Accused of Spying on Web Users.” ArabianBusiness.com, June 30, 2013. http://76 m.arabianbusiness.com/some-arab-gov-ts-accused-of-spying-on-web-users-506565.html. “Telecoms to Lock Smuggled Phones.” Daily Star, April 18, 2013. http://www.dailystar.com.lb/Business/Lebanon/2013/Apr-18/214152-77 telecoms-to-lock-smuggled-phones.ashx#axzz2QnUMBWUR. Bowe, Rebecca. “Data Request from Lebanese Security Agency Sparks Controversy | Electronic Frontier Foundation.” Electronic Frontier78 Foundation, December 7, 2012. https://www.eff.org/deeplinks/2012/12/lebanese-security-agency-user-data-request-sparks-controversy. Akl, Nada. “Lebanese Telecom Minister Launches Controversial #ProtectPrivacy Campaign,” Global Voices Online, December 9, 2012. http://79 globalvoicesonline.org/2012/12/09/lebanese-telecom-minister-launches-controversial-protectprivacy-campaign/. Freedom on the Net, p. 68880 Ibid, p. 11081 “Internet Surveillance in Bahrain Reaches New High in the Name of National Security.” IFEX, December 3, 2013. http://www.ifex.org/82 bahrain/2013/12/03/cyber_safety_directorate_established/. Conversation with Mohamad Maskati of the Bahrain Youth Center for Human Rights, January 22, 2014.83 Freedom on the Net, p. 67084 “#Hack4freedom.” Freedom Online Conference, June 17–18, 2013. http://www.freedomonline.tn/Fr/Netizens-4-Freedom_11_73.85
  15. 15. Internet Agency (ATI), complete with decommissioned censorship machines, responsible for surveillance under deposed president Ben Ali. !86 Five months later, however, a decree establishing the new Technical Telecommunications Agency (ATT), has dampened hopes. According to the decree, the primary functions of the agency would be “to investigate and record ICT-related crimes, to coordinate with telecom operators and access networks, and to monitor national telecom traffic “in accordance with international human rights treaties and personal data protection laws.” Citing Article 5 of the decree that says reporting on the ATT’s activities will be87 “secret, unpublished and only sent to the government” and the invocation of telecom and privacy laws dating to the Ben Ali regime, activists and critics have called to rescind the decree for its lack of user88 protections. “Ammar 404 is coming back,” said Slim Amamou, an online activist imprisoned under the89 former regime. “People who have worked on surveillance before are the same but it’s under a different cover, a new administration.” !90 Resisting Online Limits on Speech: Transforming Digital Restrictions into Digital Rights! The assault on freedom of expression encoded in the legal framework for online media in the Arab world may seem irreversible with the balance of power tilted as it is sharply in favor of those who make and enforce the rules. Yet journalists, activists, business owners, and ordinary netizens are speaking out and organizing opposition and, in several instances, achieving success. They are rejecting the reactive stance that arbitrary application of language and laws often puts them. Instead, they are reframing the status quo as a conversation about digital rights, using a variety of approaches, including legal advocacy, coalition and capacity building, research and information visualization (as seen in 7iber.com’s “Legislative Limits,’ page __), and online campaigns.! Lebanese activists and civil society have defeated two proposed laws that attempted to compromise citizen’s rights. In 2010, the Professional Computer Association and SMEX led a successful 36-hour, online-offline campaign to stop passage of an e-transactions law that authorized unlawful search and seizure of electronic assets. Two years later the same groups joined with newer ones and individual netizens to protest against LIRA, the Lebanese Internet Regulation Act, which threatened to ban “immoral content” as well as required onerous and inane registration procedures. Adding to their insult, former information minister Walid El Daouk, who issued the law, had attempted to circumvent parliamentary procedure to push it through. After learning of the end-run, Lebanese activists generated a noisy online91 backlash, aggregating their disapproval with the hashtag #stopLIRA and producing spoof videos on YouTube and other eye-catching visuals—including one that threatened retribution by the hacker collective Anonymous—eventually prompting the minister to withdraw the law. !92 In one of the clearest successes to date, a two-year campaign led by the Iraqi Network for Social Media (INSM) defeated a proposed cybercrime law in Iraq that would have imposed life imprisonment !14 “Tunisian Hackers Decrypt Dictator’s Old Internet Censorship Machines | The FRANCE 24 Observers.” France 24, June 24, 2013. http://86 observers.france24.com/content/20130624-tunisia-internet-censorship-hackers-servers. “THD - Création de l’Agence Technique des Télécommunications: La police du Net vient de voir le jour.” Tunisie Haut Debit, November 15,87 2013. http://www.thd.tn/index.php?option=com_content&view=article&id=3680:creation-de-l-agence-technique-des-telecommunications-la- police-du-net-vient-de-voir-le-jour&catid=58&Itemid=88. Abrougui, Afef. “Will Tunisia’s ATT Ring in a New Era of Mass Surveillance?” Global Voices Advocacy, November 26, 2013. http://88 advocacy.globalvoicesonline.org/2013/11/26/will-tunisias-att-ring-in-a-new-era-of-mass-surveillance/. Van Zyl, Gareth. “Call to Rescind Tunisia’s E-Surveillance Decree.” IT Web Africa, December 3, 2013. http://www.itwebafrica.com/ict-and-89 governance/399-tunisia/232088-call-to-rescind-tunisias-e-surveillance-decree. “Digital Citizen 1.3”90 “L.I.R.A | Lebanese Internet Regulatory Act.” Ontornet.org, March 26, 2012. http://lira.ontornet.org/.91 Abu-Fadil, Magda. “Activists, Bloggers Stop Lebanese Internet Regulation Act, for Now.” The Huffington Post, April 10, 2012. http://92 www.huffingtonpost.com/magda-abufadil/lebanese-internet-regulation-act_b_1412276.html.
  16. 16. for “using the Internet to ‘harm the reputation of the country’ or to broadcast ‘false or misleading facts’ intended to ‘damage the national economy’.” A year of jail time awaited “whoever violates principles,93 religious, moral, family, or social values or personal privacy through information networks or computers in any way.” !94 In a write-up about the campaign, INSM founder Hayder Hamzoz detailed how INSM succeeded by organizing meetings and conferences around the country to discuss the law and its detrimental effects, including one at a law university in Diwaniyeh, which included legal experts and members of parliament. Factors critical to their success, he explained, included talking to people involved in the95 policy-making process—including lawyers, members of parliament, and international freedom of expression organizations—while conducting online campaigns in parallel to keep the pressure on. As an added benefit of its advocacy work, INSM earned legitimacy as a voice in the policy-making arena and is now working with others to draft a law that pro-actively protects user rights in Iraq while also providing the protections needed to have a functional internet environment.! Moroccan internet users similarly succeeded in pressuring their Minister of Industry, Commerce, Investment and Digital Economy to withdraw the proposed Code Numérique in December 2013. The draft law threatened users’ rights by re-criminalizing insults to the king, Islam, the monarchy, or Morocco’s territorial integrity (the press code already forbids it), as well as “extend[ing] the reach of the law to include statements offending against public order, national security, necessities of public service, or public policy” and authorizing authorities to block websites as a means of enforcement. In addition to96 spurring a vocal online campaign, netizens also started a crowdsourced document where anyone with97 the link could weigh in and propose the kind of law they wanted to see. “This approach was simply to allow for an open space where we could all express our own views, discuss, comment, and write right [sic] the articles we believe were written wrongly in the proposed bill,” recalls Moroccan activist Zineb Belmkaddem. “We also believed there was a need for something constructive to come out of it all,98 because the anger and frustration created an online buzz and a lot of pressure, but not a viable alternative.”! Conclusion! A legal framework is meant to establish predictable rules and procedures for citizens and governments to interact with consistency as a means of establishing and preserving social order, regardless of whether those interactions take place online or offline. The emerging legal frameworks for online expression in the region violate this principle utterly. Inherent contradictions between laws, elastic language, arbitrary application, and secretive legislative processes have created a looming legal armature upon which an ever-expanding web of threats to speech readily entrap publishers all along the spectrum from professional journalists to unsuspecting netizens. ! !15 O’Brien, Danny. “Iraqi cybercrime bill is the worst kind.” Committee to Protect Journalists, March 30, 2012. https://www.cpj.org/internet/93 2012/03/iraqi-cybercrime-bill-is-the-worst-kind.php. Ibid.94 Hamzoz, Haydar. “‫العراق‬ ‫في‬ ‫اإللكترونية‬ ‫الجرائم‬ ‫قانون‬ :‫مناصرة‬ ‫”.حملة‬ Social Media Exchange, July 12, 2013. http://ar.smex.org/%D8%AD95 %D9%85%D9%84%D8%A9-%D9%85%D9%86%D8%A7%D8%B5%D8%B1%D8%A9-%D9%82%D8%A7%D9%86%D9%88%D9%86- %D8%A7%D9%84%D8%AC%D8%B1%D8%A7%D8%A6%D9%85-%D8%A7%D9%84%D8%A5%D9%84%D9%83%D8%AA %D8%B1%D9%88%D9%86%D9%8A/. York, Jillian. C. “Will Morocco Regulate the Internet? An Interview with Zineb Belmkaddem and @IbnKafka.” Electronic Frontier Foundation,96 December 17, 2013. https://www.eff.org/deeplinks/2013/12/will-morocco-regulate-internet-interview-zineb-belmkaddem-and-ibn-kafka. https://docs.google.com/document/d/13XBnZ546vkO4aNA-cktklqC8nFLVno0pR6c6-fADY3o/edit97 “Will Morocco Regulate the Internet?”98
  17. 17. The effect is devastating not only because it perpetuates a culture of self-censorship that obscures corrosive societal challenges such as corruption, inequity, and injustice but also because it marginalizes the prospects for a regional knowledge-based economy that, if allowed to flourish, would play a leading role in the stable and secure future that governments purport to want. Fortunately, intrepid citizens in Bahrain, Iraq, Morocco, Lebanon, Egypt, Tunisia, and beyond know the stakes. In ever-increasing numbers and with native knowledge of the tools at hand, they are securing and protecting online expression, and by extension digital rights. And they are patient, because they know that the exchange of information—freely, critically, and at the speed of light—not any president, prince, or king—offers the only possible path to a prosperous, fulfilling future.! Recommendations for the Doha Centre for Media Freedom! The challenges to online expression outlined in this report present several opportunities for the Doha Centre for Media Freedom to advocate for improving the legal landscape for online journalists, activists, and ordinary Internet users in the Arab world. Recommended interventions include:! ! • The Doha Centre for Media Freedom should incorporate into their workshops and reports knowledge about the legal framework in Qatar and across the region to raise awareness among participants not only of the challenges they face in speaking freely and critically but also of their digital rights.! • The Centre should continue to advocate for free expression and adopt a more significant role in supporting citizen and civil society efforts, through formal and informal partnerships with analogous organizations, to secure and protect Arab and international digital rights.! • The Centre could play a leading role in tracking the development of legislation governing digital rights in the Gulf region and in advocating for the legislative process to be more open and to take a consultative approach that incorporates voices and expertise from academics, technologists, the private sector, and civil society.! • The Centre should advance and enhance its record of responding quickly and forcefully to ill-defined legislation and disproportionate and arbitrary prosecutions in the Gulf region, as well as facilitating legal assistance for the accused.! • The Centre could contribute to tracking data on the grounds for detention and release for online journalists and activists detained for specifically online speech.! ! ! ! !16
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