Freedom of expression online under GCC cybercrime laws
At the national level, five of the GCC countries protect freedom of expression – although with some far-reaching caveats – under their constitutions (see Tabl 6); the exception is Saudi Arabia, which does not have a written constitution.
Table 6: GCC constitutional provisions regarding freedom of expression
|
Country |
Article |
|---|---|
|
Bahrain |
‘Freedom of speech and freedom to carry out scientific research shall be guaranteed. Every person shall have the right to express and propagate his opinion in words or in writing or by any other means, in accordance with the conditions and procedures specified by the law.’ |
|
Kuwait |
Article 36: (b) ‘Freedom of opinion and of scientific research is guaranteed. Every person has the right to express and propagate his opinion verbally, in writing, or otherwise, in accordance with the conditions and procedures specified by law.’ |
|
Oman |
Article 29: (c) ‘The freedom of opinion and expression thereof through speech, writing and other means of expression is guaranteed within the limits of the Law.’ |
|
Qatar |
Article 47: (d) ‘Freedom of expression of opinion and scientific research is guaranteed in accordance with the conditions and circumstances set forth in the law.’ |
|
UAE |
Article 30: (e) ‘Freedom of opinion and expressing it verbally or in writing or by other means shall be guaranteed within the limits of the law.’ |
Sources: (a): Article 23: (a);
(b): Article 36: (b);
(c): Article 29: (c);
(d): Article 47: (d);
(e): Article 30: (e).
All GCC countries except for Oman are states parties to the Arab Charter on Human Rights.57 The Charter enshrines in articles 24 and 32 the rights to information, freedom of opinion, political activity, and freedom of assembly and association.58
Internationally, of the GCC countries, only Bahrain and Kuwait have ratified the ICCPR, which is a legally binding instrument for states parties. All the GCC countries are members of the UN; this in theory means that their laws should respect the Universal Declaration on Human Rights, which, while not a binding human rights treaty, is a foundational document of the UN, and which upholds the right to freedom of expression in Article 19.59 For the GCC states that have not ratified the ICCPR, this provision, together with the above provisions in the Arab Charter on Human Rights, provides the minimum rights to which citizens are entitled.<60
Notwithstanding these various national, regional and international commitments and obligations on the part of the GCC countries, the provisions listed in Table 5 do not appear to meet the cumulative requirements of the three-part test as set out by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, and in the case law of international human rights bodies such as European Court of Human Rights. This raises concerns when viewed through the lens of international human rights law standards.
Under the three-part test, for limitations to be legitimate, they need first to be prescribed by an unambiguous law, which must be both accessible and foreseeable.
Most controversial provisions in the GCC cybercrime laws are drafted using vague terms, with no explicit definitions as to what these terms mean. As a result, citizens and residents could unintentionally break the law because of its ambiguity. This goes against the stipulation of the Human Rights Committee that legislation ‘must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly’, and that laws ‘must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not’.61
Furthermore, the vagueness of their laws could enable creative interpretation on the part of the GCC governments to include new behaviours that may not have been anticipated when a piece of legislation was originally enacted. Notably, for example, in the context of the diplomatic crisis with Qatar that began in mid-2017,62 the UAE general prosecutor announced that any sympathy shown for Qatar on social media (in practice by any user in the UAE) would be considered a cybercrime and could lead to imprisonment between three and 15 years or to a fine of at least 500,000 AED.63 Clearly, this behaviour was not envisaged under the original text of the UAE’s 2012 Federal Decree-Law No. (5) on Combating Cybercrimes.
The second element under the three-part test is that restrictions should be enacted for the pursuance of a legitimate purpose:
The cybercrime laws of the GCC countries expand the definition of cybercrime to acts that are not considered as cybercrime by international legal instruments and other model laws, putting their legitimacy into question. Most of these laws criminalize offences such as defamation that give rise to civil liability only in jurisdictions with a high record of freedom of expression, and should be treated as such according to the international human rights standards.64
According to the terms of the ICCPR, legitimate purposes that would justify limitations on free speech entail the respect of the rights or reputations of others, the protection of national security or of public order, or of public health or morals.65 A high threshold is set as regards what each legitimate purpose means. Concerning the protection of public morals, for example – an offence mentioned under all GCC laws, and an argument often used in the region to justify the curtailment of speech – the Human Rights Committee states that ‘the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition’.66 Therefore, permissible limitations to free speech should be formulated taking into consideration the universality of human rights and based on the non-discrimination principle.67 Limitations in the GCC are not in harmony with this rule.
Third, limitations must respect the principles of necessity and proportionality:
The provisions highlighted in Table 5 are far-reaching, giving governments extensive powers to prosecute anyone who publishes content that is not considered compatible with the social or political norms of the country. This goes strictly against the principles of necessity and proportionality. As set out by the Human Rights Committee:
When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.68
The Committee further stipulates:
The principle of proportionality must also take account of the form of expression at issue as well as the means of its dissemination. For instance, 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.69
The GCC cybercrime provisions shown in Table 5 do not meet these conditions in that they are broad, vague and far-reaching, and therefore at odds with international human rights standards.
To illustrate in more detail some limitations in the GCC cybercrime laws and the way international human rights law elaborates on these limitations, Table 7 considers Article 6 of the Kuwaiti cybercrime law70 as against the ICCPR, to which Kuwait is a state party, and the Human Rights Committee’s General Comments in this regard.
Table 7: Article 6 of Kuwait’s cybercrime law compared with international human rights law
|
Criminalized under Article 6 of the Kuwaiti cybercrime law |
International human rights law (ICCPR and Human Rights Committee [‘The Committee’] General Comments) |
|---|---|
|
Challenging, ridiculing or insulting God, the Holy Quran, the Prophets, the good companions or the wives of the Prophet. (a) |
|
|
Criticizing the Emir or quoting him without a special permission written by the Emiri Diwan. (d) |
|
|
Insulting the judiciary or members of the Public Prosecution or infringing on the integrity and neutrality of the judiciary or the decisions of the courts or the investigative bodies. (e) |
|
|
Publishing official secret communication and the publication of agreements and treaties held by the government of Kuwait prior to publication in the Official Gazette, except with the special permission of the concerned Ministry. (f) |
|
|
Damaging the relationships between Kuwait and other Arab or friendly countries if this is done through media campaigns. (g) |
|
Sources: Based on Human Rights Watch (2015), ‘Kuwait: Cybercrime Law a Blow to Free Speech’.
(a): Original text in Arabic, Article 6 of the Law No. (63) for the year 2015 on Combating Information Technology Crimes;
and Article 19 of Law No 3 of 2006 regarding Publications and Publishing;
(b): UNGA, Promotion and protection of the right to freedom of opinion and expression, and Article 20 (2), ICCPR;
(c): HRW (2015), ‘Kuwait: Cybercrime Law a Blow to Free Speech’;
(d): Original text in Arabic, Article 6 of the Law No. (63) for the year 2015 on Combating Information Technology Crimes;
and Article 20 of Law No 3 of 2006 regarding Publications and Publishing;
(e): Original text in Arabic, Article 6 of the Law No. (63) for the year 2015 on Combating Information Technology Crimes;
Article 21 of Law No 3 of 2006 regarding Publications and Publishing; (f): Ibid; (g): Ibid; (h): HRW (2015), ‘Kuwait: Cybercrime Law a Blow to Free Speech’.
At the time of their enactment, the cybercrime laws of the GCC countries were condemned by international human rights organizations, which deplored the laws’ damaging impact on civil liberties and their incompatibility with guarantees of human rights. GCC governments were urged to reconsider provisions intended to crack down on free speech and target online activism.71
Some GCC governments countered such criticism of their countries’ respective cybercrime laws with public statements of their commitment to the defence of freedom of expression. In an official letter to the Committee to Protect Journalists in October 2013, Qatar’s prime minister affirmed that the provisions of the forthcoming Qatari cybercrime law were ‘free of any restrictions on the freedom of opinion and expression’; that the legislation was ‘fully adherent’ to the Qatar’s constitution, ‘ensuring the freedom of opinion and expression’; and that it did not breach ‘the relevant international instruments’.72 In mid-2015 Kuwait’s justice minister, in response to speculation that had been circulating via social media that the country’s new cybercrime legislation would enable the authorities to monitor online communications, stated: ‘Everybody has the right to use […] mobile devices without being monitored.’ He gave assurances that the cybercrime law’s provisions were aimed at ‘protecting the society, individuals and general security from online abuse’, and asserted that the main objective of the law was ‘responsible freedom’.73
Some GCC news outlets were similarly critical of the laws, as well as of their wide scope of application. There have been allegations that in some cases this has resulted in retaliatory measures against certain such organizations. There was speculation, for instance, that the temporary blocking of access to the Qatar-based online Doha News in late 2016 was linked, inter alia, to its recent criticism of Qatar’s cybercrime law.74 Notably, a few weeks before access was abruptly blocked, Doha News had published an editorial alleging that the law was being used ‘by criminals and individuals with personal agendas to silence others’, and urging that it be amended in the interests of preserving free speech and protecting journalism.75
Several human rights defenders and activists have been prosecuted under these laws, deported or jailed for online comments, for blogging or for posting pictures that were aimed at social, religious or political ends.
Moreover, several human rights defenders and activists, as well as other regular social media users, have been prosecuted under these laws, deported or jailed for online comments, for blogging or for posting pictures that were aimed at social, religious or political ends. Some people who posted content that was intended to be humorous and satirical were also jailed and prosecuted.76
Some of these cases77 have been taken up by international media as well as by human rights organizations in calling for the release of detainees and, in some instances, considering them ‘prisoners of conscience’.78
The Human Rights Committee has emphasized that restrictions imposed by states on free speech ‘may not put in jeopardy the right itself’.79 However, the provisions of the GCC countries’ cybercrime laws, given their text and scope of application, do jeopardize the right to free speech. Moreover, they have a chilling effect on freedom of expression and may lead to self-censorship. Their impact is on citizens and residents as well as on journalists and media workers who may be prosecuted for the mere fact of doing their job.
It is important to note that it is not only the GCC countries that have been criticized for their legal response to regulating the online sphere. In fact, most governments have been grappling with the issue of providing security while protecting liberties, the approach to which is largely determined by the historical, political and socio-economic backgrounds of the country in question. To give one example from Europe, Germany’s ‘NetzDG’ law, which entered effect in January 2018, has been widely criticized by human rights organizations for chilling online speech, for not providing for adequate judicial oversight, and for placing the responsibility for censoring online content on social media companies on behalf of governments, and fining them if they fail to do so.80
57 For a list of ratifications (in Arabic), see League of Arab States, http://www.lasportal.org/ar/legalnetwork/Documents/ÇáãíËÇÞ%20ÇáÚÑÈì%20áÍÞæÞ%20ÇáÃäÓÇä.pdf. Although this Arab League portal does not mention Kuwait’s ratification of the Charter, other sources do mention it; see for example Mattar, M. (2013), ‘Article 43 of the Arab Charter on Human Rights: Reconciling National, regional and International Standards’, Harvard Human Rights Journal, 26 pp.91–147 http://harvardhrj.com/wp-content/uploads/2013/05/V26-Mattar.pdf.
58 League of Arab States (2004), ‘Arab Charter on Human Rights’, 22 May 2004, https://app.icrc.org/elearning/curso-sobre-privacion-libertad/story_content/external_files/Carta%20Arabe%20de%20Derechos%20Humanos%20(2004).pdf.
59 UNGA (1948), Universal Declaration of Human Rights, 10 December 1948, http://www.un.org/en/universal-declaration-human-rights/.
60 Hannum, H. (1996), ‘The UDHR in National and International Law’, Georgia Journal of International and Comparative Law, 25(1), http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1396&context=gjicl.
61 UN Human Rights Committee (HRC), General comment no. 34, Article 19, Freedoms of opinion and expression, 12 September 2011, CCPR/C/GC/34 para. 25.
62 For a summary, see BBC (2017), ‘Qatar crisis: what you need to know’, 19 July 2017, http://www.bbc.com/news/world-middle-east-40173757.
63 Al Arabiya English (2017), ‘UAE: Showing sympathy for Qatar on social media is a cybercrime’, 7 June 2017, http://english.alarabiya.net/en/News/gulf/2017/06/07/UAE-General-Prosecutor-says-showing-sympathy-for-Qatar-on-social-media-is-a-crime.html.
64 Duffy, M. J. (2014), ‘Arab Media Regulations: Identifying Restraints on Freedom of the Press in the Laws of Six Arabian Peninsula Countries’, Berkeley Journal of Middle Eastern & Islamic Law (6)2, pp. 1–31, https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1036&context=jmeil.
65 UNGA, International Covenant on Civil and Political Rights, Article (19).
66 UN Human Rights Committee (1993), CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/Add.4 https://tavaana.org/sites/default/files/G9318602.pdf.
67 UN Human Rights Committee, 102 session, General Comment No.34, Article 19, paragraph 32.
68 Ibid.
69 Ibid, paragraph 35.
70 i.e. Law No. (63) for the year 2015 on Combating Information Technology Crimes.
71 See for example HRW (2012), ‘UAE: Cybercrimes Decree Attacks Free Speech’, 28 November 2012, https://www.hrw.org/news/2012/11/28/uae-cybercrimes-decree-attacks-free-speech; Amnesty International (2014), ‘Qatar: New cybercrimes law endangers freedom of expression’, 18 September 2014, https://www.amnesty.org/en/latest/news/2014/09/qatar-new-cybercrimes-law-endangers-freedom-expression/; Committee to Protect Journalists (CPJ) (2014), ‘New cybercrime law could have serious consequences for press freedom in Qatar’, 17 September 2014, https://cpj.org/2014/09/new-cybercrime-law-could-have-serious-consequences.php; (on Kuwait) Reporters Without Borders (2016), ‘New Cyber Crimes Law restricts free expression and targets online activists’, 21 January 2016, https://rsf.org/en/news/new-cyber-crimes-law-restricts-free-expression-and-targets-online-activists.
72 Embassy of the State of Qatar, Washington DC (2013), Letter addressed by HE Abdullah Bin Nasser Bin Khalifa Al Thani, Prime Minister of Qatar to the Executive Director of the Committee to Protect Journalists (CPJ), 11 October 2013, available at https://cpj.org/Qatar-Alert_letter.pdf.
73 The Times of Kuwait (2015), ‘Cybercrime law guarantees privacy of individuals – Minister Al-Sane’, 23 June 2015, http://www.timeskuwait.com/
Times_Cybercrime-law-guarantees-privacy-of-individuals–Minister-Al-Sane.
74 The New Arab (2016), ‘Qatar accused of censorship after Doha News website blocked’, 1 December 2016, https://www.alaraby.co.uk/english/news/2016/12/1/qatar-accused-of-censorship-after-doha-news-website-blocked.
75 Doha News (2016), ‘Qatar’s cybercrime law is being abused by criminals and must be changed’, 8 October 2016, https://dohanews.co/qatars-cybercrime-law-is-being-abused-by-criminals-and-must-be-changed/.
76 Cassim, S. (2014), ‘I went to jail for posting a comedy skit on YouTube. Is this the modern UAE’, Guardian, 9 February 2014, https://www.theguardian.com/commentisfree/2014/feb/09/shezanne-cassim-jail-uae-youtube-video.
77 See for example HRW (2013), ‘Saudi Arabia: 600 Lashes, 7 Years for Activist Convicted of Insulting Islam Through Website, TV Interviews’, 30 July 2013, https://www.hrw.org/news/2013/07/30/saudi-arabia-600-lashes-7-years-activist; Doha News (2015), ‘WhatsApp insults lead to jail sentence for Qatar woman’, 25 November 2015, https://dohanews.co/whatsapp-insults-leads-to-jail-sentence-for-qatar-woman/; Australian Associated Press via Guardian (2015), ‘Australian deported from Abu Dhabi after ‘writing bad words’ on Facebook’, 14 July 2015, https://www.theguardian.com/world/2015/jul/15/australian-deported-from-abu-dhabi-after-writing-bad-words-on-facebook; World Organization Against Torture OMCT (2016), ‘Kuwait: Cyber Crimes Law silencing dissent, as Sara Al-Drees remains subject to prosecution in ongoing trial, says coalition trial observation report’, 12 December 2016, http://www.omct.org/human-rights-defenders/urgent-interventions/kuwait/2016/12/d24098/.
78 Amnesty International (2017), ‘United Arab Emirates: Release Emirati Human Rights Defender Ahmed Mansoor!’, 28 March 2017, https://www.amnesty.org/en/latest/campaigns/2017/03/release-emirati-human-rights-defender-ahmed-mansoor/.
79 UN Human Rights Committee, 102 session, General Comment No.34, Article 19, paragraph 21.
80 HRW (2018), Germany: Flawed Social Media Law. NetzDG is Wrong Response to Online Abuse, February 2018, https://www.hrw.org/news/2018/02/14/germany-flawed-social-media-law (accessed 22 Jun. 2018).