Cairo, 9^th July 2008

ACIJLP’s remarks on the draft law on audio and visual transmission

The Arab Center for the Independence of the Judiciary and the Legal Profession (ACIJLP) is extremely concerned by the draft law on audio and visual transmission put forward by the Egyptian Media of Information. The Egyptian government plans to submit it to the People’s Assembly at the start of the coming parliamentary session.

ACIJLP is of the opinion that if passed the legislation would represent another addition to the list of the most dangerous laws curbing and restricting public freedoms, laws which have placed Egypt amongst the ranks of oppressive states. This law is part of a series of laws issued recently, the Judicial Bodies Law and the Traffic Law the latest examples of such laws.

ACIJLP’s study of the draft law on audio and visual transmission has revealed that the draft contains a large number of vaguely defined and ambiguous provisions criminalising acts and imposing penalties for acts such as threatening public order, morals, social peace, national unity and public morals in a manner which hides the meaning of these provisions from people who differ about the exact meaning of these acts because the provisions fail to state in a conclusive manner which acts are criminalised, which could lead to ambiguity.

As a result, the implementation of a large number of these provisions will be linked to the personal interpretations of members of the administrative body – interpretations which might be mixed with the whims of members of this administrative body. The point of reference for these standards is the discretionary interpretation of those overseeing the implementation of these provisions as to their true meaning and the implementation of their personal understanding of the sense of the provisions could distort or pervert their meaning.

The ambiguity of a large number of the draft law’s provisions will necessarily lead to a selective application of this law, which may in many cases include arbitrariness.

Many of those addressed by these provisions will be caught up within the law’s zone of prohibition and may be prevented from carrying out the activities which take them within this zone – even if the Egyptian Constitution and the law in their general meaning do not prohibit these activities.

These factors will constrain freedom of opinion and expression and the right to impart and receive information which will lead to a narrowing of the scope of the fundamental rights and freedoms guaranteed by the Egyptian Constitution and international instruments.

Many of these provisions for this reason seem unconstitutional, and if passed this draft law will necessarily lead to the return of the age of the censors.

ACIJLP has a number of remarks on the draft law, including:

1. The text of article 1 deals with censorship of all kinds of audio and visual transmission which, according to the fourth paragraph of this article comprises “any broadcast, sending or encrypted or unencrypted provision of sounds, images or combined sounds and images or any other representation of them, or of signs or writings of any kind not characterised by the features of private communications, allowing the public, or a certain group or the individuals concerned to receive or interact with them through wired or wireless means of communication, or through cables or satellite dishes or computer networks or other means and methods of transmission, conveying, sending or provision is considered to include any broadcast, sending or encrypted or unencrypted provision in instances where members of the public are able to choose for themselves the time of sending and the place where it is received.”

This renders the National Agency for the Regulation of Audio and Visual Transmission – whose establishment is envisaged by the law – a security body which will exercise censorship over all forms of Egyptian media and media broadcast in Egypt including television and news channels and the Internet including email, Facebook and personal blogs. It indicates a preparedness to interrogate any agency, authority or individual about the sending or receiving of audio, visual or audio-visual messages via the means described above. Measures such as these are gradually enacted by oppressive states which oppress the right to freedom of opinion and expression and circulation of information and knowledge and which incline towards complete control of the media and its contents. These states nominate themselves the guardians of society and its culture and consciousness, which is reminiscent of the Law for the Protection of Values for Debasement, issued at the end of President Anwar Sadat’s era.

2. The text of article 2 and its six paragraphs describe, in an ambiguous and vaguely-defined manner, the obligations and prohibitions falling on the shoulders of those involved in audio and visual transmission:

-         The text contains expressions such as “the openness and transparency of information and the public’s right to receive correct information” and the expression “negatively influencing social peace, national unity and the principle of citizenship and public order and public morals.”

-         This wording goes against general rules on the drafting of legal provisions which require that legislation – and in particular penal laws, or laws which restrict rights or freedoms – be drafted in a manner which provides a minimum level of certainty necessary for the implementation of the law, and which is transformed into a general source for those responsible for the implementation of the law whose whims and misinterpretations will be given free reign. Laws must be drafted within narrow limits in order to ensure accurate application of the law; general expressions and widening of forms may lead to unintended objectives and the restriction of rights guaranteed by the Egyptian Constitution and international instruments, or be used as a pretext for the violation of these rights, particular the right to freedom of expression.

-         The wording of article 2 is not in conformity with these rules, and is in violation of Press Law 96 [1996], in particular its articles 6 – 10. This provides the National Agency for the Regulation of Audio Visual Transmission with a wide scope of possibilities to repress the media and intimidate those involved in audio visual transmission. It threatens journalists, in their capacity as the original experts working in media channels, and endangers their job security.

-         This article uses arbitrary, subjective wording. It imposes the condition that information received must be correct, which raises many points of concern about the body which alone will decide on the extent of the accuracy of information. This will destroy many of the rights of journalists and those working in the media, especially given that the government does not respect the right to spread information and does not include this right within the framework of its constitutions. This may push journalists and those working in the media to consult security or censorship bodies before broadcasting or publication – which in truth is a return to the age of the censor.

-         The wording of this article uses expressions in conflict with sound legislative drafting, since it requires that a comprehensive service be provided to the public in conformity with democratic development. This creates concern about the comprehensive service, which represents interference in the media or broadcast policy of the body responsible for the transmission.

-         The expression that this service must be in conformity with democratic development is wording aimed at annihilating media activity on the pretext that it is not in conformity with democratic development. Such wording characterises totalitarian regimes which for the most part use expressions providing that the law must protect the revolution and Socialist values.

-         This drafting represents a return to the use of imprecisely defined terms, leaving the task of defining these terms is left to an administrative body. Egyptian supreme courts have consistently rejected this, and the use of such terms because of their negative effects – the grip of security bodies on anyone they wish to punish on pretext that they have violated these provisions, is tightened.

The text of article 5(2) gives the National Agency the right to put in place fundamental principles and rules on which the granting of licenses and authorisation issued by the National Agency is based. It also puts in place implementing statutes for these fundamental principles and rules which specify the monetary remuneration for the authorisation, licences and services offered by the National Agency.

-         The article is drafted in a manner which violates the principles of the general law and rulings of Egyptian supreme courts. This is because laws such as these must, at their core, define the criteria for the granting for such licences and authorisation rather than leaving it to an administrative body responsible for the implementation of the law to put this criteria in place – in order that the administrative body does not arbitrarily put in place a condition which destroys the right granted by the law, in a manner similar to all laws which require the obtainment of a administrative authorisation.

Article 5(3) which deals with the competencies of the National Agency. It grants the National Agency the power to delineate the criteria which must be met for authorisation and licensing, specifically in matters concerning the legal personality of authorised legal and natural persons and specifically legal norms and technical and financial criteria.

-         This article is drafted in such a way as to lead to arbitrariness in the designation by the National Authority of authorised natural and legal personalities. This constitutes a clear violation of legal principles which require that the law itself defines the criteria determining which individuals may be granted a licence whether natural or legal personalities. This matter should not be left to the National Authority to decide on.

-         This may lead to many points of concern about the wording whose objective may be the arbitrary control of the entities licensed to offer this service.

Article 12 deals with the composition of the executive board of the planned council headed by the Minister of Information. The composition would seem to be made up of government members since the article provides for ten government seats, four allotted to experts and two to public figures. This composition speaks volumes about the vision of the government and security bodies vis-à-vis the formation of the National Agency and an unwillingness to consider the values of interest-holders including directors and owners of television channels and Internet sites.

The last paragraph of article 12 provides for the possibility of forming a committee composed of members of the board of executives or experts who are not members of the board of executives. This raises fears that it will delegate matters pertaining to the approval or otherwise of the granting of licences to a committee composed of members of security bodies.

The text of article 22 deals with the obtainment of authorisations and the consideration of applications for authorisations. The text of article 22 gives the National Authority ninety days, from the date of the submission of the application, to respond. It then provides for a similar period of time, and states that the application is considered refused if the National Authority has not responded within this period of time.

-         ACIJLP considers that the wording of this article as it currently stands violates the right to establish channels and electronic sites and does away with the right to freedom of opinion and expression and the right to circulate information. This is because the draft law does not obligate the National Authority to grant licences where certain conditions are fulfilled.

-         This article prevents the holders of a right guaranteed by the Constitution and international instruments from exercising this right unless they have obtained legal judgements. The legal process for obtaining these judgements may be protracted, prompting fears about the eventual implementation of the judgement.

The provisions of article 33 – 44 are not in conformity with principles of legitimacy and violate the right to freedom of thought and expression in the following ways:

-         The articles threaten obligatory imprisonment which may include anyone who re-broadcasts over the Internet a visual or audio item using Email, Facebook or personal blogs available to all and which may be accessed, or the provision of any visual or audio item using any method whether wireless or non-wireless. This may include mobile telephone voicemail circulated by members of the public.

-         These articles criminalise the importation, manufacture or assembly of equipment used in transmission. This threatens the satellite dish spare parts trade as well as companies and factories, and is a reminder of what used to happen in Egypt in the past, when all users of Fax machines, computers and calculators were obligated to obtain authorisation from the General Security Authority. This confirms the security body-nature of this Authority and that the excellence and content of the artistic or media product is not the issue. Rather, preservation of morals and the public interest is the objective.

-         Article 37 is a clear violation of penal law which provides that individuals should not be punished twice for the same offence. This provision provides for multiple financial penalties for multiple recordings or sound recordings or broadcast programmes forming the object of the crime, or for the number of times it reached the public without prior written permission from the transmission agency.

-         Article 41 is a violation of the simplest rules of legal drafting since it lays down a penalty of imprisonment of not less than a month for whoever exposes or delivers data or information he is not permitted to expose or deliver connected with the activity of the National Authority or anyone licensed or authorised regardless of whether he has this information as a result of his work or any other reason.

-         This article is also seemingly unconstitutional because of its failure to clearly define the essence and nature of the information which may not be exposed. This confirms the security function of the National Authority’s work, which reaches the extent of imposing an imprisonment sentence on National Authority employees or others. This is a clear threat to those working in the media to not publish information which might reach them through any means. This is a unique provision not found in the laws establishing administrative bodies and national councils because this type of provision violates the right of journalist and those working in the media to circulate information.

-         Article 42 violates the principles of penal law which requires that penalties be handed down to the individuals responsible for the crime. It brings to mind the presumed responsibility of newspaper editors which the Supreme Constitutional Court has previously held to be unconstitutional.

Article 44 is a clear violation of the Constitution and the law in the following ways:

-         The instigation of legal cases is dependent on an order by the head of the National Authority, in violation of the provisions of the Egyptian Criminal Procedures Code which clearly, and exhaustively, lists the crimes for which the public prosecution office may not instigate legal proceedings without a complaint. They are for the most part crimes affecting individuals such as adultery, defamation and crimes within the family. Other than these crimes, the public prosecution office is uniquely responsible for instigating criminal cases without a request or a complaint.

-         This wording confirms that the drafters of the law did not differentiate between crimes committed against society and public order and crimes committed against individuals. This is despite the fact that the law is presented as if it regulates and protects audio-visual transmission, in preservation of social order, public morals and national unity.

-         The instigation of criminal proceedings against individuals who violate its provisions is dependent on the order of the head of the National Authority. The head of the National Authority has taken the place of the public prosecution office in his role as guardian of society’s interests and public morals. This inspires fears about an arbitrary differentiation undermined by personal whims about who the provisions of the law are applied to.