The legislative environment and judicial rulings in Egypt are full of rules and principles related to imposing forms of censorship over contents of different forms, visual, vocal, and read. Naturally, these tools have evolved along with technology, and the increasing role of the Internet in recent years in enriching contents, providing alternative platforms and unlimited accessibility. In parallel, tools of censorship of contents have evolved managing to block access to some of them in addition to blocking access to some services, and though the statement “blocking users” can’t resist technological evolution, it has become an established legal reality in the Egyptian legislative environment.
The legislative reality, embodied in reinforcing blocking as an established legal tool, has emerged and evolved throughout the last ten years, and we can clearly notice its evolution phases. We can also find no big difference in legislative motivations related to approving rules of blocking from other traditional censorship tools, as much as we find an insistent intention of the legislator to include rules of blocking in different guises. Such rules may take the form of precautionary measures, or appear in the form of an administrative punishment for a publishing platform. In other instances, we find that they can’t be understood except as a mass punishment for users in general. This insistent desire of including rules of blocking in different pieces of legislation, was accompanied by ensuring that blocking becomes a competence of many entities as it was distributed and shared among different authorities and entities, while reasons and motivations differed, as specialized police agencies, general prosecution, different courts as well as councils and authorities like the Supreme Council of Media Regulation have the authority to block content.
Within the context of this evolution that started in courts and ended up as law provisions that include blocking as a basic rule in much legislation, the Egyptian Constitution was issued in 2014. It prohibited imposing censorship over Egyptian newspapers and media outlets, or confiscating, suspending or closing them.1 Accordingly, this paper seeks to record the legislative evolution of the blocking process, explaining some aspects that might be related to direct legal effects resulting due to practicing blocking as a precautionary measure or a punishment.
The Egyptian Judiciary Establishes Judicial Precedents Allowing Blocking
As there were no law provisions regulating the process of blocking and filtering content of different forms, it all started with improvisation on the part of the State Council judges. The Administrative Court used some of the Telecommunication Regulation Law provisions as a legal buttress, or perhaps as an excuse for blocking. It can be said that some judicial improvisations have contributed in opening the door for establishing legal rules for preventing users from accessing content or for blocking some services.
The courts have contributed to reinforcing the concept of blocking through expanding the wrong interpretation of the Telecommunication Law provisions, and trying to find a legal excuse by which access to content can be prevented. These trials seemed obvious during the period from 2011 up till 2015, when there was no legislation explicitly mentioning the ability to block or the existence of competence for the administrative authority or the law enforcement agencies to take such a measure. The start was in 2012, when an Egyptian lawyer filed a lawsuit in front of the Administrative Court,2 demanding obliging the National Telecom Regulatory Authority (NTRA) to block YouTube website inside Egypt, and all the links publishing what is known as the “Prophet’s offending movie”, as well as all links publishing footage attacking Islam.
Hearing the lawsuit of blocking the Prophet’s offending movie in front of Egyptian courts of different degrees lasted for 6 years, and two rulings were issued in favor of blocking the links publishing the movie, while each was interpreted differently, as in 2013 the Administrative Court ordered the blocking of YouTube for a month, and blocking all links publishing the movie, depending on its loose interpretation of the text of articles numbered (64) and (67) of the Telecommunication Law. Using these articles, the court was able to find a legal excuse allowing the obligation of administrative entities to block the content, through extending the interpretation of the concept of national security and the necessity of protecting it.
The Telecommunication Law provisions that were used oblige service providers to make available the technical requirements including equipment, systems, programs, and communications within the communications network to enable the Armed Forces and National Security Agencies of practicing their competences. They also give these entities the power to take control of all communications services and networks in cases of a natural or an environmental disaster or in the cases requiring public mobilization or any other cases related to national security.
“Telecommunication services operators and providers, and their agents, as well as users of these services, are hereby obliged not to use any telecommunication services encryption devices unless first obtaining the approval of the Authority [NTRA], the Armed Forces, and National Security Agencies. This is not applicable to the encryption devices specific to Radio and TV broadcast.
While observing the sanctity of citizens private lives protected by the law, every service provider or operator is obliged to provide on its own expenses within the licensed telecommunications network all the technical requirements of equipment, systems, programs, and communications within the telecommunications network required to enable the Armed Forces and National Security Agencies to practice their competences within the limits of the law. Service provision should go in parallel with making the required technical provisions available. The telecommunications services providers and operators and their agents commissioned to market these services are required to obtain accurate information and data of their users from citizens and the different state entities.”
Article 64 of the Telecommunication Regulation Law number 10 of 2003
The law provisions have not specified the nature of these technical provisions or their use conditions. The law has not included a clear definition of the National Security concept, either, thus the courts hearing the lawsuit of blocking YouTube have extended the interpretation of this concept to include what is known as “National Social Security” and the necessity of protecting it, preventing whatever constitutes a threat against it. The court ended up with a judicial precedent obliging the administrative entities to take the required measures of blocking as per the Telecommunication Regulation Law.3 The Supreme Administrative Court, while hearing the appeal against the ruling, has called for the necessity of issuing legislation that prevents and incriminates any broadcast by any means that is liable to harm the religious beliefs and constants of the Egyptian people to preserve social peace and the unity of national fabric. This lawsuit was followed by a wave of legislation that regulated the process of blocking for different reasons. Among these rules of blocking are the ones specified explicitly in the Anti-Cyber and Information Technology Crimes Law, and the Press and Media Regulations Law.
Blocking as an Exceptional Legal Tool in the Anti-Terrorism Law
The issue of the Anti-Terrorism Law was not easy, discussion of issuing the law lasted for long years. There have always been difficulties concerning the definition of the terrorist crime, its nature, and its distinction from other traditional crimes. The law came4 with many rules of exceptional nature, including rules of blocking links to electronic websites and pages.
Accordingly, establishing the right to blocking for the first time in Egyptian legislation has come through a law of an exceptional nature, which was necessarily reflected in the formulations regulating the blocking. The law set competences for the General Prosecution or the competent investigation authority5 to suspend, or block websites, or block whatever included by any aspect of using, every website on telecommunications networks, the Internet, or other networks if the website was created with the purpose of promoting ideas or beliefs calling for committing terrorist actions, broadcasting whatever is meant for misleading security authorities, affecting the process of justice concerning any terrorist crime, exchanging messaging or issuing orders among terrorist groups or their members, or the information concerning acts or moves of terrorists or terrorist groups locally or abroad.6
It is not clear from the text of Article 49, what are the procedures to be followed for taking the decision of blocking, as the article includes a number of temporary precautionary measures that can be enacted by the General Prosecution, like closing residences, and seizing movables and furniture. Such a decision by the General Prosecution is temporary pending the final resolution of the case. Absent from the text of Article 49, is any mention of the nature of the order of suspending or blocking the website, and if it is permanent or temporary, as well as if it is linked to the resolution of the case, and what are the procedures for repealing it.
Including Blocking as an Essential Rule in New Legislation
Exceptional rules, specified in the Anti-Terrorism Law, were not enough for applying the process of blocking on a wide range. During the last four years, the blocking-related activities increased, while no official entity has announced its responsibility for these practices, which means that they were practiced out of legal frameworks, as there was no public decree through which the legality of these practices could be ascertained or monitored. This common pattern of practices usually aims to reinforce illegal procedures so that they become normalized, and then legalized through establishing unconstitutional law rules.
As time passed, blocking has become a normal occurrence that users deal with daily. Consequently, a number of basic legislation and executive regulations were issued so that the regulation of blocking process and content filtering is a basic part of them. The authorities managed to legalize the practices7 that started in 2017 through joining the exceptional rules specified by the Anti-Terrorism Law with permanent rules in many laws, leading to the inclusion of blocking in regulative and penal legislation under different legal categories.
A – Blocking is a procedural measure for protecting National Security in the Anti-Cyber and Information Technology Crimes Law
The Anti-Cyber and Information Technology Crimes Law, number 175 of 2018, was issued in August 2018. The discussion of this law was preceded by several trials throughout the preceding three years, for passing a law for Cybercrime. Among these was a draft prepared by the Ministry of Justice, in March 2015, and another prepared by the Ministry of Communications and Information Technology, in the same year.
The law includes a number of rules regulating blocking. Among these are the cases where blocking can be applied through them as a preliminary measure. The low vests investigative entities with the competence for issuing an order of blocking websites once they deemed their published content constitutive of a crime, or a National Security threat, or endangers the country’s national security or economy. The law also vests police forces with the competence of requesting the block of websites, before a judicial ruling, in case of emergency or necessity, provided that the order by police forces is referred to the General Prosecution which in turn refers it to the competent court. The competence of applying blocking measures is available when evidence is found that the website that broadcasts inside or outside the country has inserted statements, figures, photos, films, marketing materials, or their likes, that constitute one of the crimes specified by this law, a threat to National Security, or endangers the country’s security or economy.8
B – Blocking as an administrative penalty in Press and Media Regulations Law and its executive regulations
The Press and Media Regulations Law, number 180 of 2018, was issued after discussions that lasted for more than 3 years. The law includes a number of rules regulating the operation of media outlets of different forms. The law vests the Supreme Council for Media Regulation (SCMR) with vast competences allowing it to impose different forms of censorship over the different forms of media outlets. This does not stop with the SCMR, as the law includes undetermined competences related to censorship of websites and personal accounts, thus the distinction of different forms of censorship and their mechanics should be clarified.
Censorship of websites and personal pages
The Press and Media Regulations Law aims basically to set the rules for regulating the operation of media outlets. It however includes an exceptional provision allowing the SCMR to apply blocking penalty to websites and personal pages, as Article 19 of the law indicates that the SCMR has the competence to take the suitable measure in case “a website or an account published or broadcasted false news, or whatever calls, or incites breaking the law, violence, or hate; implies discrimination among citizens, calls for racism or sectarianism; or includes dishonor, insult, or libel against individuals, offending celestial religions or faiths.” In case of committing any of the mentioned violations, the Council may take a decision of suspending or blocking the website, blog, or account.
Censorship of electronic media outlets and websites
The Press and Media Regulations Law, and its executive regulation include a number of cases where the SCMR may take a penalizing decision including the penalty of suspending or blocking a website, these cases are as follows:
Blocking as a complementary penalty applied by courts in case of violating the licensed activity: A press means, a media institution, or a website are penalized with a fine of no less than a million Egyptian pounds, and no more than 2 million Egyptian pounds, if proved to violate the nature of their licensed activity, the court may additionally rule the annulment of the license or blocking the website.
Blocking penalty in case of establishing websites outside the Arab Republic of Egypt, or managing offices or branches of websites working outside Egypt without a license: In case of establishing websites outside the Arab Republic of Egypt, or managing offices or branches of websites working outside Egypt without obtaining a license from SCMR according to the checks and conditions it sets for this matter, the Council may take the required measures including the annulment of the license, or suspending, or blocking the website.
Blocking penalty in case of violating the obligatory conditions of the media means staff: The Press and Media Regulations Law sets conditions that should be observed for the activity of a media means to continue, among these are:
- The electronic newspaper or website should appoint an accountable chief editor who has actual supervision of what it publishes.
- A number of accountable editors, each has actual supervision of a specific department.
- The accountable chief editors and editors of the newspapers should be registered in the list of active journalists of the Syndicate of Journalists.
- Any of the chief editor or departments directors should not have been convicted with a felony or a misdemeanor prejudicial to honor or honesty unless he/she was rehabilitated.
The SCMR may, in case of violating these conditions, take the required measures, including annulment of license or suspending or blocking the website.
Blocking penalty in case of operating any media outlet or website or announcing this, before obtaining a license: in case of operating any media outlet or website or announcing this, before obtaining a license from SCMR, it may take the required measures, including annulment of license or suspending or blocking the website.
Blocking the journalistic material in case of violating the rules of journalistic work as specified by the list of penalties issued by the SCMR: a number of penalties ranging from applying the penalty of notification, an obligation of formal apology in the same manner of exposure used in the violation, paying a sum of money up to 250,000 EGPs or their equivalent in foreign currency, the temporary suspension of broadcast or publishing, or blocking the violating material, for a specific period of time or permanently, or applying the above to the page, section, or program either for a specific period of time or permanently in case of:
- Publishing or broadcast of material or advertisement whose content contradicts the provisions of the Egyptian Constitution, calls for violating the law, violates the obligations specified in the professional compact, violates public order or morality, class for debauchery, or indecency, or implies an offense against religions or faiths, in a way endangering societal public peace.
- Using, or allowing the use of vocabulary or statements implying libel, defamation, offense, or ridicule or individuals, suspicion of financial integrity, breaching the sanctity of private life of citizens, deceiving the public or fabricating fake events, or unproven accusations, or implying threatening or harming public feelings.
- Publishing or broadcasting fake news, rumors, calls for violating the law, or inciting it, calling for violence, hate, discrimination, sectarianism, racism, or whatever endangers the unity of the national fabric, defames state institutions, or harms their public interests, provoking the public, or offending others’ opinions, or sharing information through social media without verification.
- That a newspaper, media outlet, or website, performs or allows performing discussions or interviews that generalize particular cases, in the guise of general phenomena, damaging the rights of the citizens to enjoy honest and free journalism and media on a high level of professionality and compatible with the Egyptian cultural identity.
- Obliging by the rules of journalistic or media coverage of military or security operations or terrorist incidents.
- Broadcasting or publishing a journalistic, media, or marketing material that includes children’s faces while being interrogated or criminally tried.
Rules and procedures of repealing block decisions
The rules and procedures of repealing block decisions differ based on the entity issuing the decision, and the legal base it depended on, so differences should be noted concerning the repealing procedures for decisions issued by the General Prosecution, or any of the investigating entities based on the Anti-Cyber and Information Technology Crimes Law, compared to the decisions issued by the SCRM based on the Press and Media Regulations Law, while noting that there is no obvious legal mechanism for repealing the websites blocking decisions issued depending on the Anti-Terrorism Law.
Procedures of repealing block decisions issued by General Prosecution or investigation entities
The Anti-Cyber and Information Technology Crimes Law includes the conditions concerning the legal nature of the block decision and the methods of repealing it. The repealing rules for block decisions are similar to the other temporary judicial decisions issued generally by the General Prosecution, like travel bans, restraining disposal of assets, and other temporary decisions and measures. Concerned parties may, after 7 days of the issue of the block decision or its implementation, follow the procedures of repealing it in front of the competent court, if it was rejected, it is possible to file a new repealing request every 3 months after the last court decision of rejecting it. The court should issue its decision within 7 days of filing the request.
Due to the nature of the block decision as a temporary precautionary measure, the Anti-Cyber and Information Technology Crimes Law gives the court hearing the lawsuit, the right either on its own or based on a request by the investigation entity, NTRA or concerned parties, to decide to suspend the block decision or modify its range of application. The block decision is annulled in case of dismissal or a final ruling of acquittal in the related lawsuit.
Procedures of repealing block decisions issued by the SCRM
The competences vested by the Anti-Cyber and Information Technology Crimes Law related to taking the decision of blocking websites and pages, are similar in nature to administrative decisions issued by different administrative entities, which are repealed in front of administrative courts as per the legal rules and timings related to repealing the administrative decision. It is implicitly understood that websites and pages block decisions may be repealed by request to the SCRM, as it can revoke the issued decision or modify its application range as for the block period, as it can be shrunk if the decision was for a specific time. The range of the block can also be modified by limiting it to a journalistic material, content, or a particular page on the website or account.
Footnotes
1 Article 71 of the Egyptian constitution issued in 2014: “It is prohibited to, by any means, impose censorship over Egyptian newspapers or media outlets, or confiscate, suspend, or close them, It is however allowed as an exception, imposing a specific censorship in the time of war or public mobilization. There can be no freedom deprivation penalty for crimes committed by publication or publicity. The penalties for the crimes related to inciting violence, discrimination against citizens, or libel, are determined by law.”
2 Shorouk: November 10th the first hearing of a lawsuit for blocking YouTube for publishing the offensive movie against the Prophet.
3 AFTE: With a judicial ruling… A reading in a ruling of blocking YouTube. November 2018. https://afteegypt.org/research/research-papers/2018/11/05/16254-afteegypt.html
4 The President of the Republic Decree number 94 of 2015, issuing Terrorism Fighting Law – Official Gazzete, 33 (repeated) August 15th, 2015.
5 Article 49 of Law number 94 of 2015 concerning Terrorism Fighting: “The General Prosecution, or competent investigation authority, as per the case, relevant to the crimes specified by articles (12, 15, 19, and 22) of this law, may issue a temporary order of closing the quarters, places, residences, and shelters, provided that an order is issued by at least a Prosecution Director. The movables, and furniture seized within are considered to be in administrative custody once seized and till the lawsuit is finally resolved. The are to be delivered after inventorying and recording in a report to a guardian commissioned with guarding the seals placed on the closed quarter, place, or residence. If no movables were seized, the guardian is commissioned with guarding the seals in the same manner, The acquittal ruling implies the annulment of the closure order. The General Prosecution or the competent investigation authority may suspend, block, block whatever is included by any aspect of use of the websites specified by the first paragraph of Article 29 of this law, and seize any devices and equipment used in the crime.
6 Article 29 of Law number 94 of 2015 concerning Terrorism Fighting: “To be punished with strict imprisonment for no less than 5 years, whoever created or used a website over telecommunications network, the internet, or otherwise, for the purpose of promoting ideas or beliefs calling for committing terrorist acts, broadcasting whatever is meant for misleading security authorities, affecting the process of justice concerning any terrorist crime, exchanging messaging or issuing oders among terrorist groups and their members, or the information related to terrorists or terrorist groups acts or moves locally or abroad. To be punished with strict imprisonment for no less than 10 years, whoever entered, with no right, or illegally, an electronic website of any government entity with the purpose of obtaining data or information found on it, whether to read, change, delete, destroy, or forge its contents, all, with the intention of committing, or preparing for any of the crimes mentioned in the first paragraph of this article.
7 Masaar – Technology and Law Community, Blocked websites in Egypt: https://masaar.net/en/blocked-websites-in-egypt/
8 Article 7 of Law number 175 of 2018 concerning Combating Information Technology Crimes: “The competent investigating entity may once evidences were established of a website inside or outside the country that placed any statements, figures, films, any marketing materials, or their likes, which constitute a crime specified in the Law, and a threat to National Security, or endangers the country’s security or economy, to order the block of the website/s whence the above is broadcasted, wherever this was technically viable.
The investigative entity should refer the blocking order to the competent court, convened in consultation room, within 24 hours accompanied by a memorandum including its recommendations. The court is to issue its reasoned decision either approving or dismissing the order, within 72 hours since it was referred to it.
In case of emergency due to resident danger or imminent damage, the competent enquiry and arrest entities may inform the Authority [NTRA] so it may immediately notify the service provider to temporarily block the website. Content, websites, or links mentioned in the first paragraph of this article and subject to its provisions. The service provider is obliged to carry out the contents of the notification once it receives it.
The enquiry and arrest entity that filed the request has to compose a report recording the measures taken subject to the provisions of the previous paragraph, referring it to the investigating entities within 48 hours after filing the request to the Authority. The same procedures as specified by the second paragraph of this article are to be followed. The competent court issues its decision in this case either approving the blocking measures or suspending them.
If the report mentioned in the previous paragraph was not referred in the specified time, the blocking carried out is annulled. The court hearing the lawsuit may, during its proceedings, or on request of the investigating entity, the Authority, or concerned parties, order the suspension of the blocking order, or the modification of its range.
In all cases, the blocking order expires once an order of lawsuit dismissing or a final acquittal ruling was issued.”