ICHR welcomes the issuance of Law by Decree No. (10) 2018 on electronic crimes and introduces a series of observations and reservations
Following the issuance of Law by Decree No. (10) for 2018 on electronic crimes on 29/04/2018, published in the special issue No. (16) of the official Palestinian Gazette on 3/5/2018, the Independent Commission for Human Rights (ICHR) welcomes the response of the government to an important portion of the recommendations and observations raised by ICHR, the Journalists Syndicate and civil society organizations on Electronic Crimes Law No. 16 for 2017. The Commission’s observations included cancellation of general and ‘loose’ texts in the new law and alleviation of criminal penalties, two of the key objections of ICHR and civil society organizations on the previous Law by Decree. At the same time, the Commission still has several reservations and sees the need to continue the dialogue on additional amendments, in compliance with the right to privacy and respect of private life. The desired amendments should also guarantee freedom of opinion and expression, in a way that enhances citizens’ rights and fundamental freedoms, in accordance with the Basic Law and obligations of the State of Palestine at the international level.
The Commission previously expressed its deep concern on the issuance of the electronic crimes Law by Decree for 2017, because it comprised provisions that constitute a real dangerous threat and breach of the right to freedom of opinion and expression, right to privacy and the inviolability of citizens’ private life. Moreover, ICHR monitored several violations that resulted from this law which was issued in July 2017, such as arresting, summoning and prosecuting journalists, activists and citizens on the basis of expression of opinion or journalistic work. Back then, ICHR called for a substantial amendment of the Law. The government responded positively by forming a committee for dialogue with the different parties, including ICHR, Journalists Syndicate and civil society organizations. The Commission participated in several sessions of the dialogue with official institutes in order to achieve the desired amendments on the law, in a way that creates a balance between combating electronic crimes and protecting the rights and fundamental freedoms of citizens.
While the Commission welcomes the government’s response to several of its recommendations, there are still some issues of concern for the Commission that need to be addressed, mainly regarding privacy, freedom of opinion and expression. The attached legal memo explains the main observations of the Commission on the new law.
Legal Memo on the New Decree-Law
Decree-Law No. (10) for 2018 on Electronic Crimes
In commitment to its role as mentioned in the amended Basic Law for 2003 and its amendments, and in Presidential Decree No. (59) for 1994, to monitor national policies and legislations to ensure their compliance with the Basic Law and with international human rights conventions to which the State of Palestine has adhered, the Independent Commission for Human Rights (ICHR) has carefully followed-up all the events, procedures and reactions that followed the issuance of Decree-Law No. (16) for the year 2017 regarding electronic crimes, issued in July 2017. The Commission expressed its deep concern on the issuance of the electronic crimes law, because it comprised provisions that constitute a dangerous threat and breach of the right to freedom of opinion and expression, right to privacy and the inviolability of citizens’ private life. The Commission, together with civil society organizations, requested the amendment of the law in a way that enhances citizens’ rights and fundamental freedoms, in compliance with the Basic Law and the State of Palestine’s obligations at the international level. In this context, the Commission participated in several discussions with official institutions for the purpose of accomplishing substantial amendments on the Decree-Law in a way that creates a balance between combating electronic crimes and protecting the rights and fundamental freedoms of citizens.
The Commission re-expresses its gratitude towards official institutions for their readiness to engage in dialogue with it and with civil society organizations on the Decree-Law. The Commission appreciates the acceptance of numerous of its recommendations, particularly cancelling the general and ‘loose’ texts in the new law, and alleviating punishments, which were two of the main objections by ICHR and civil society organizations on the previous Decree-Law. Nevertheless, the Commission, in commitment to its abovementioned responsibility and role, wishes to introduce before the Palestinian public opinion a series of observations regarding this Decree-Law. These observations were previously delivered to the government during the development of the draft law. The Commission regrets that these observations were not taken into consideration in the copy of the law published in the Palestinian Gazette. Having published these observations to the public, ICHR hopes that there will be response to them, to enhance citizens’ rights and freedoms, and to implement the obligations of the State of Palestine to international human rights treaties. ICHR is ready to engage in dialogue with official and competent organizations to develop a modern law on electronic crimes that shall protect human rights and fundamental freedoms.
Following, we highlight the main observations on the provisions of the Decree-Law, which if not reconsidered or reviewed, could lead to serious breaches of human rights and fundamental freedoms. We stress here that ICHR continues to express its reservation about continuing and expanding the issuance of lawful resolutions in the absence of the legislative council.
- Once again, the Decree-Law on electronic crimes stipulates that it shall be valid as of the date of its publication in the official Gazette (Article 57). Hence, it does not give the public and law-enforcement authorities enough time to study it. This is against the process of validating old and modern criminal laws, where it is stipulated that the validation of the law take place after a period not less than one month. This is to give the targeted group enough time to know their rights, duties and to adjust their behavior accordingly. Otherwise, the law is considered non-compliant with the principle of criminal legality and with the right to know the legal rule which features in the Basic Law, Article (15).
- Despite the fact that the new Decree-Law is better than the current Decree-Law in that it cancelled texts that incriminate freedom of opinion and expression by using general and ‘loose’ terms such as public order, public ethics, State security, social peace, …The Commission considers that the door has once again been opened to incriminate acts and publications that fall under freedom of opinion and expression because of general and ‘loose’ terms. This is clear through Article (45) of the Decree-Law which stipulates that anyone who commits an act which constitutes an offense under any applicable legislation using the internet or any other means of information technology, or any person who participates in, intervenes in or instigates this act, and it was not stipulated in this Decree-Law, shall be liable to the same penalty codified for the crime in question under the applicable legislation. This allows the implementation of the penalties code and prints and publication law in force. Both of which incriminate publications and declarations that fall under freedom of opinion and expression, due to general and loose terms, such as crimes of defamation, slander and libel of high-level officials, and provocation of racist and sectarian tensions. These laws are under question in terms of their compliance with the principle of criminal legality and freedom of opinion and expression. These laws have been used to suppress freedom of opinion and expression as well as to imprison citizens, journalists and activists, a preventive detention, and to even criminally prosecute them. Moreover, the General Comment No. (34) of the UN Human Rights Committee, and the modern international tendency, abrogate the “incrimination” of libel and slander “crimes”, merely considering them an offensive act that require civil compensation if the offended person asks for it. It has also been stressed–even under civil compensation-, that one has to differentiate, when it comes to the offended, between public officials and ordinary figures. It considers that libel of a public figure in relation to his public function, does not require civil compensation. Based on the aforementioned, ICHR demands that Article (45) is fully abrogated. It also requests amendments on the penalties code and prints and publication law in order to delete parts that incriminate declarations, actions and publications that fall under freedom of opinion and expression.
- The Decree-Law contained several provisions that incriminate certain acts based only on expectation of risk and the intention to commit crime –which is investigated after the damage is done- and not based on the occurrence of damage. This could lead to consider many acts as criminal even though they might not have caused any damage. These provisions, in their current form, constitute a threat to freedom of opinion and expression, a restriction to the use of the internet, and an unjustified expansion of incrimination. Therefore, we demand an amended drafting of these texts to make them part of damage crimes and not danger crimes. This means it is not enough to expect intentions and risk to incriminate and punish, instead the condition to incriminate should be that the damage has already occurred. These texts are found in: Article (6), Article (11, paragraph 2, 4), Articles (17-19), Articles (22-26).
- The Commission overviews Article (21) positively, as it stresses on constitutional freedoms. This Article proved the good intentions of the Decree-Law and its improvement compared to the previous one. Nevertheless, we consider that this Article should be placed under the general principles of the Decree-Law, which are usually placed in the beginning of the legislation. In this context, we welcome the possibility of placing an additional text under the general principles next to Article (21) stipulating that it is prohibited to interpret any text in this Decree-Law in a way that infringes the rights and freedoms enforced in the Basic Law or in international human rights conventions. Moreover, in the second paragraph of Article (21), which deals with the issue of filing or mobilizing cases to suspend or confiscate artistic, literal and intellectual works, or cases against the creators. This article stated that it is possible to file or mobilize a case by an injunction, which is incorrect, as filing or mobilizing a case should be done through an adjudication, not an injunction. Confiscation of materials can only be done through an adjudication issued from a competent court. Therefore, we recommend the amendment of this article by stipulating that confiscation of artistic, literal and intellectual works can only be done though an adjudication issued by a competent court.
- Article (22/1) of the Decree-Law stipulates the prohibition of arbitrary or illegal interference in the privacy of any person, his family’s affairs, home or correspondence. However, it does not penalize such a dangerous interference, particularly that arbitrary or illegal interference always comes from the administration. Hence, we recommend the amendment of this article by defining the appropriate punishment for this interference, and stipulating the non-application of this crime , in accordance with Article (32) of the Basic Law. As to the second paragraph of the same Article, which criminalizes the creation of a website, an application or an electronic account… in order to publish news or photographs or audio-visual records… related to the illegal interference in individuals’ private or family life, even if true, it was noted that the criminalization is too vast. It is based on intention without occurrence of actual damage. It stipulates that the mere creation of a website or application in order to publish news or images related to illegal interference, is enough to criminalize a person, even if the website was not used and no harm was done. Moreover, this paragraph does not link the legal prosecution with the complaint of the affected party, even though it is more linked to personal right than to public right. Most importantly, this article does not differentiate if the targeted personality is a public figure or an ordinary individual. Interference in the life of a public figure, by publishing photos, private or family information, is permitted if it is related to the public function of this figure. Hence, we recommend the amendment of this paragraph so that it becomes a crime of damage and not a crime of danger. The amendment should also tackle the criminal prosecution by connecting it with the complaint of the affected party. It should also differentiate between the interference in the life of a public figure, and the life of an ordinary person. In this context, the Decree-Law must provide the definition of a public figure.
- Article (29) of the Decree-Law provides the court with the competence to dissolve the juridical person, if he commits, in his name or for his account, one of the crimes featured in this Decree-Law. The dissolution of a juridical person, even if its signature is in the competence of the court’s final verdict, is considered a harsh punishment. Here, in particular, it can be applied to any crime, even if it was not a severe crime. This creates a disproportionate balance between the crime and its punishment. Moreover, there are economic consequences that shall befall the employees of the juridical person in the case of dissolution. In this context, it is better to define the acts for which the court can resolve to dissolution of juridical person. Such acts should be dangerous crimes or felonies. It is possible to refer to Article (36) of the Penal Code which underlines the justifications to suspend the activities of body corporates, which are cases where chairmen or members of the management commit, in its name or through its means, an intentional crime or felony. The punishment for such a crime can be up to minimum two years imprisonment.
- Article (31) of the Decree-Law defines the obligations of the service provider. It says in the first paragraph: “provide the competent authorities with all necessary data and information of the subscriber that will assist in uncovering the truth, at the request of the prosecution or the competent court.” Here, we consider the phrase “that will assist in uncovering the truth”, can lead to the access of content information, the access to which requires strict procedures, and not a simple request by the prosecution or competent court. Therefore, we recommend that this paragraph is limited to committing to provide the competent authorities with the subscriber’s information as defined in Article (1) of the Decree-Law.
- Article (34/1) of the Decree-Law manages the surveillance of electronic calls and conversations. This Article is in harmony with Article (51) of the code of criminal procedures in force. However, paragraph two of this Article infringes Article (51) abovementioned, and clearly lacks the guarantees of communication surveillance as it omits the condition of having a permission from the judge of peace for the collection and immediate provision of data, including access data. It also fails to mention the gravity of the crime, of being a felony or misdemeanor whose punishment is no less than one-year imprisonment. Therefore, we recommend the amendment of the second paragraph by making its phrasing similar to paragraph one and Article (51) of the abovementioned procedures code, because this paragraph allows authorities to obtain access data. This data should be protected by strict guarantees. There is even a trend that considers obtaining access data as a “self-condemnation”, which is prohibited under international standards.
- Articles (32/33) of the Decree-Law give the prosecution or whomever it mandates from judicial control officers the competence to inspect people, places, and information technology tools relevant to the crime. In addition, the Articles grant them the competence to seize devices, tools, means or data… and the permission to retain, make copies or records of them, and seeking assistance from whomever they deem is an expert. These Articles lack certain guarantees stipulated in the code of criminal procedure, such as limitation of the validity of the inspection order, absence of the condition that the inspection should be conducted in the presence of the accused, absence of the condition that the inspection should be for the objective of investigating a crime that actually occurred in order to find proof, and not based on suspicions, however strong they might be, of committing a crime. These Articles concern inspecting electronic devices and data storage systems, which is close to inspecting sealed envelopes inside a house or inspecting papers of a full library where it is extremely difficult to separate crime-related data from other data that can be examined by law-enforcement apparatus. Some do not consider this inspection as an inspection but rather a procedure within communications’ surveillance. In this case, it should abide to the procedures of communications’ surveillance. Hence, in respect to the sensitive privacy of these devices and systems, and due to the difficulty of separating data (crime-related or not), it is necessary to protect the right to privacy and respect of the private life of users. Therefore, the inspection of these devices and systems by the prosecution should be subject to an order granted by a competent court. The inspection should also be conducted only in the case where a crime had indeed been committed, in addition to adding the other guarantees provided by the code of criminal procedure relevant to inspection.
- Article (39) of the Decree-Law manages the issue of blocking websites. Even though blocking websites is a convicted act according to UN Human Rights Council resolution (A/ HRC / 32 / L.20) dated 27/06/2016, it is acceptable in some systems as long as there are certain guarantees provided to take such a serious act. These guarantees include: the blocking is due to clear reasons, is based on an order issued by a competent court, the blocking should be for a limited period, and the decision can be subject to rebuttal at the competent reference. These guarantees are not included in this Article. The reasons that justify the blocking use general and ambiguous terms. Hence, we suggest that the reasons for blocking websites should be clarified by statements, images, films, advertising materials or any other material that caused damage in one of the crimes stated in this Decree-Law, instead of using this phrase: “that shall threaten the national State security or public order…”. Moreover, this Article does not specify the time limit for the blocking. It stated that the blocking is limited to six months renewable without determining the renewal’s limit. This means that the blocking is more a punishment than a safe-keeping procedure. Furthermore, this Article does not state the possibility to appeal the issued decision of the blocking. Based on the above, we recommend the amendment of this Article by adhering the abovementioned guarantees.
- In some parts of the Decree-Law, there is no distinction between a felony and a misdemeanor, which makes the text lack a legal basis. For example, Article (4/4) stipulates that the punishment of the act mentioned in paragraph (3)… is imprisonment for a period not exceeding 5 years and a fine of no less than one thousand Jordanian dinars… Imprisonment is a criminal penalty, whereas a fine, no matter its value, is a penalty for a misdemeanor. Hence, this crime cannot be described as a misdemeanor neither as a criminal act. This shall create a problem in determining the competence of the court and shall largely affect the provisions of return and repetition stipulated by the Decree-Law itself.
- In a clear infringement of Article (21) of the code of criminal procedures, which specifies the persons who are qualified as judicial control officers, including officers who were given mandate for judicial control in accordance with the law, Article (54) of the Decree-Law stipulates that the Ministry’s employees assigned by the minister are judicial control officers for the purpose of implementing the provisions of this Law by Decree. Hence, we demand an accurate specification of the job titles in the Ministry of Telecommunications and Information Technology, which are qualified as judicial control officers. We also demand that assigning judicial control officers should not be issued by a ministerial resolution, because the qualification of ‘judicial control’ cannot be obtained except by the law, according to Article (21, paragraph 4) of the code of criminal procedures in force.