Explanatory Memorandum: Legislative Effect of the Crime of Intentional Disturbance Using Telecommunication Means

 

Introduction

Since it was issued in 2003, the Egyptian Telecommunications Regulation Law hasn’t had any positive legislative developments related to the need for making its terms and definition more rigorous, especially when they concern behaviors incriminated by the law. While the amendments suggested by the National Telecom Regulatory Authority (NTRA) seeking to improve its role in protecting free competition and users’ rights in the telecommunication field have hit a stopping block, other amendments that can be called a legislative setback have passed. Those amendments, approved by the parliament in 2022, set new restrictions on using and operating telecommunications equipment.

Due to this lack of development, the telecommunication sector suffers from essential issues that make users vulnerable to legal accountability because of some inaccurate texts. At the head of these texts is the one in the second paragraph of Article 76 of the Telecommunications Law, No. 2003/10, known as the crime of “intentional disturbance”. Although law enforcement bodies have used this crime widely over twenty years, the Egyptian courts on every level, including the Cessation Court, haven’t managed to set a rigorous definition of this crime or a conceptualization of its forms.

Masaar, through this explanatory memorandum, seeks to point out the issues related to the text and application of Article 76 of the Telecommunications Law and provides potential legislative alternatives for avoiding them. The memorandum starts with an explanation of the intentional disturbance crime in Egyptian laws, before moving to the aspects of Article 76 suspected unconstitutionality, and it ends with recommendation for amending that article.

This explanatory memorandum, addressed to legislators and decision-makers, comes within the other efforts of Masaar to stop and ameliorate the effects of this article. Within this context, Masaar has published a memorandum arguing the unconstitutionality of the second paragraph of Article 76 of the Telecommunications Law, in addition to a memorandum discussing the most important substantive and procedural defenses related to the crime of intentional disturbance.

The legislative development of the crime of intentional disturbance using telecommunication means

The crime of intentional disturbance is among the crimes specified in various laws, including the Penal Code and the Telecommunications Law. The concept of this crime has undergone legislative development that can be observed through the contexts of establishing it in each of these laws.

First: Context and concept of the crime of intentional disturbance under the Penal Code

The Egyptian legislation had no legal regulation concerning the behavior that came to be called “intentional disturbance” until the issuance of law No. 1955/97 amending the Penal Code. The legislator created according to these amendments new crimes. One of these was the crime of intentionally causing disturbance to others “by misusing telecommunication devices,” which is stipulated in Article 166 bis.1

The Ministry of Justice prepared an explanatory memorandum for the draft amendment to the Penal Code to be presented to the then Cabinet for approval and issuance. This memorandum included a justification for the introduction of Article 166. The Ministry of Justice justified its desire to enact this law with the following statements:

“Recently, there has been an increase in assaults on people through defamation and slander via telephone, and the problem of disturbing them in their homes day and night has escalated. They are subjected to the most obscene words and the ugliest expressions, and the offenders take refuge in the secrecy of telephone conversations, feeling assured that the law does not impose a deterrent punishment for defamation and slander, except if the condition of publicity is met, which is not available according to the current provisions. This necessitates the intervention of the legislator to put an end to this abuse and to strike at the hands of these reckless individuals. It has been seen necessary to add two articles to the Penal Code, numbered 166 bis and 308 bis, the first article punishes anyone who intentionally causes disturbance to others by misusing telecommunication devices. The second article punishes defamation via telephone according to the penalties stipulated in Article 303, and it also punishes insults through the mentioned means with the penalty stipulated in Article 306. Therefore, if the defamation and slander committed via telephone undermines the dignity of individuals or tarnishes the reputation of families, it shall be punished with the penalty stipulated in Article 308, and it is obvious that publicity is not required for the elements of the crime stipulated in Article 308 bis to be fulfilled.”

On the same day that Law No. 97/1955 was issued, which introduced Articles 166 bis and 308 bis in the Penal Code, another law was issued, namely Law No. 98/1955, to add Article 95 bis to the Code of Criminal Procedure. Article 95 bis is the first legislative regulation in Egyptian criminal law for telephone call surveillance.

This addition came as the crime of intentional disturbance through telecommunication means occurs in secrecy and is difficult to prove evidence for it, except by limited exceptions that infringe upon the right to privacy and the sanctity of private calls.

The added article to the law states that “in case there is strong evidence that the perpetrator of one of the crimes stipulated in Articles 166 bis and 308 bis of the Penal Code has used a specific telephone device to commit the crime, the competent court president shall order, based on the report of the Director-General of the Telegraphs and Telephones Authority and the complaint of the victim in the mentioned crime, to subject the mentioned telephone device to surveillance for a specified period.”2

The legislator, however, hasn’t set, in this text, a specific definition of the concept of disturbance, thus giving free rein to courts to interpret it without any criterion to observe its limits and can be used for defining it or measuring how far it has taken place.

Second: Context and concept of the crime of intentional disturbance under the Telecommunications Law

The provisions of Article 166 bis of the Penal Code remained in effect until the issuance of the Telecommunication Regulation Law No. 10/2003. The law provided comprehensive legislative regulations concerning telecommunications at that time, including a set of definitions, among them is a specific definition of telecommunications.

The law has also included in Chapter 7 a set of criminal penalties for violating its provisions. Among these penalties is the one set by Article 76, which states that

“without prejudice to the right to appropriate compensation, anyone who commits or assists in the use of unlawful means to conduct communications shall be punished with imprisonment and a fine of not less than five hundred Egyptian pounds and not exceeding twenty thousand Egyptian pounds, or with either of these penalties, for (1) Using or assisting in the use of unlawful means for conducting telecommunication correspondence. (2) Intentionally disturbing or harassing others through misusing telecommunication equipment.”

Although the text of Article 76 of the Telecommunication Law copied the provisions of Article 166 bis of the Penal Code once the provisions of the Telecommunication Law came into force3, it did not differ significantly. The Telecommunication Law rephrased the same text while amending the prescribed penalties, increasing the maximum imprisonment penalty to three years and establishing a minimum fine with the maximum fine raised to twenty thousand Egyptian pounds.

The Telecommunications Law defined telecommunications as “any means for sending or receiving symbols, signals, messages, texts, images, or sound of any nature, whether the communication was wired or wireless.” The law also defined terminal communication devices as “the user’s devices which are connected to a public or private communication network.”

The Telecommunications Law definition of the intentional disturbance crime

Both definitions of “telecommunications” and “terminal communication devices” show the legislator’s policy seeking to expand the incrimination of crime committal means to include all telecommunication means. This expansion includes the traditional telephone communication means and other wired and wireless telecommunication means.

As for telecommunication means that use electronic processing,4 operated using any information technology means,5 or through an information system or network,6 the legislator has set a special law to regulate their provisions, especially concerning the incrimination and penalty, which is the Anti-Cyber and Information Technology Crimes Law No. 175/2018.

Presumed elements required for establishing the intentional disturbance crime

It shows through the wording of Article 76 of the Telecommunications Law that the criminal liability of an individual for the crime of intentional disturbance requires three main conditions. Each condition represents a presumed required element for establishing this crime, thus it is not established unless the three of them existed together and made sure they were present before it was committed, and it can’t be committed without any of them.

These conditions are

• First condition: the means used for committing the criminal behavior of this crime is a wired or wireless telecommunication one, except the telecommunication means using electronic processing, any information technology means, or an information system or network.

• Second condition: the communication is direct between two parties, one is the sender (the perpetrator), and the other is the receiver (the victim).

• Third condition: the communication is not public.

Issues of the application of Article 76 of the Telecommunications Law

The application of Article 76 of the Telecommunications Law has shown many issues. The effect of these issues has represented and still represents a high threat to the personal freedom of individuals, the right to a fair and just trial, equality among citizens, and the right to use telecommunication means and free expression through them. Some of these issues can be summarized through judicial applications of the article’s text, either in investigation or trial phases.

First: Duality of incriminating the same act and the issue of text replication

According to its first issuance article, the Telecommunications Law, once in force, has explicitly superseded the crime of disturbing others by misusing telecommunication devices as per Article 166 bis of the Penal Code.7 Additionally, it implicitly superseded it based on the principle that a special law supersedes a general law, and later legislation supersedes the previous, as it is new legislation, that has set a full regulation of a situation that had a previous legislation.8

Despite this, the Public Prosecution still, in many cases, applies the provisions of Article 166 bis of the Penal Code. The Public Prosecution charges the defendants based on both Article 76 of the Telecommunications Law and Article 166 bis of the Penal Code together for the same act constituting the crime.

This has expanded to criminal courts that judged in some cases convicting the defendants for committing both crimes.9 It has also expanded to the Cessation Court that approved a recent verdict convicting a defendant of committing the crime set by Article 166 bis of the Penal Code.10

This duplication constitutes a wrongful application of the law, and an explicit violation of the legitimacy principle, as no crime or penalty unless based on law.11

Second: Public Prosecution abuse in charging with committing the crime of intentional disturbance

Public Prosecution has expanded charging with committing the crime of intentional disturbance using telecommunication means regardless of the verification of the presence of the three conditions required for establishing this crime. It shows in the charging of the Public Prosecution with committing this crime for whoever committed a behavior in public that it deems to be constituting disturbance of the victim.

When charging with intentional disturbance the prosecution ignores the means used for the crime. The prosecution charges with it even if the disturbance was by using one of the means that use electronic processing, one of information technology means, or through an information system or network, and not only by using wired or wireless telecommunication means subject to Article 76 of the Telecommunications Law.

The prosecution also ignores the condition of direct communication between the perpetrator and the victim and the publicity condition. It charges with intentional disturbance whoever committed a behavior that can’t possibly be committed unless publicly using information technology, like publishing in all its forms, including writing posts, or publishing photos on social media publicly.

For instance, the Public Prosecution charged a defendant with committing the crime of intentional disturbance using telecommunication means for using their private account on social media networks Facebook and Twitter to write and publish public posts, which the prosecution deemed to include statements insulting the National Elections Authority, and false news and rumors that may disturb civil tranquility and damage public interests.12

In another case, the prosecution charged the defendant with the same crime because they used their private account on Facebook to write posts, publish private photos of the victim and publicly defame them.13

These examples reflect the abuse on the side of Public Prosecution of charging with committing the crime of intentional disturbance for behaviors or acts that lack all the conditions and elements required for establishing the crime. This can be considered as an unjustifiable abuse of the power of charging and a misinterpretation of Article 76 of the Telecommunications Law.

Third: The expansion by courts in interpreting the concept of disturbance using telecommunication means

Most judicial applications by criminal courts have ignored the three required conditions of establishing the crime of intentional disturbance, just like the Public Prosecution. Criminal courts have expanded the application of Article 76 of the Telecommunications Law to include all telecommunication means.

Criminal courts based their rulings on an interpretation that the crime takes place whether it was committed using a telephone, a computer receiving data or information, email, electronic messages, the Internet, a TV call, or any other telecommunication means.14 Accordingly, the criminal courts’ conviction rulings were perpetuated based on this interpretation.

This comes even though the lawsuits have included publishing in public using telecommunication means that use electronic processing, one of the information technologies means, or through an information system or network, which are not subject to the legal model of the crime set by Article 76 of the Telecommunications Law.15

As for the Cessation Court, it has concluded in its ruling that disturbance expands to include any speech or act that upsets the victim, no matter what kind of telecommunication devices was used.16 The Cessation Court also joined criminal courts and the Public Prosecution in ignoring the presence of the conditions required for establishing the crime of disturbing others using telecommunication means.

Additionally, the rulings and principles set by the Cessation Court show its expansion in setting the incriminating text loose to include publishing on social media networks like Facebook and Twitter.17

Setting the power of incrimination loose in this manner may imply the incrimination of using telecommunication means that depend mainly on electronic processing or information technologies, or uses an information system or network. It is not an incrimination of the act of disturbance targeted by the legislator, but rather a threat to the citizen’s right to use public means of telecommunication.

Aspects of unconstitutionality suspicions in Article 76 of the Telecommunications Law

The text of Article 76 of the Telecommunications Law is majorly haunted by legislative faults, in addition to unconstitutionality suspicions, which are the cause of the issues in its application.

The aspects of unconstitutionality can be summarized in three reasons:

• The article’s text violates the principle of the 2014 Constitution of prohibiting freedom deprivation penalties for crimes of publishing or publicity.

• The text articulation is ambiguous and vague, which crosses the borders of the legitimacy of incrimination and punishment.

• The freedom deprivation penalty set for the crime is severe and disproportionate to the incriminated act.

• The article’s text violates the principle of the 2014 Constitution of prohibiting freedom deprivation penalties for crimes of publishing or publicity.

First: Violation of the principle of prohibiting freedom deprivation penalties for publishing or publicity crimes

The constitutional legislator has affirmed in the 2014 Constitution that the general principle is the right of individuals to express their opinions by any means of public or private publishing. This general rule is the one regulating expression and publishing in all their forms and covers them with constitutional protection. Whatever contradicts this rule by any other constitutional rules in the same constitution is a mere exception in limited boundaries that can’t be expanded.

The constitutional legislator has also affirmed this once again by providing protection to the freedoms derived from this right, including the freedom of artistic and literary creativity, the freedom of the press, and printed, audio and electronic publishing. The Constitution has prohibited the violation of any of these freedoms in any form. This prohibition extended to limit the right to litigation demanding the suspension, or expropriation of artistic, intellectual, or literary works to the Public Prosecution alone.

The constitutional legislator has also constrained the principle of incrimination and punishment, prohibiting lawmakers from setting any criminal penalty that harms the personal freedom of individuals due to practicing their freedom of expressing their opinions and thoughts in any of the above-mentioned forms. The legislator also prohibited setting a freedom deprivation penalty for a crime committed through publishing or publicity, as a general rule, as well as a crime committed because of the publicity of an artistic, literary, or intellectual work.

This absolute prohibition comes in total and with no constraints. The legislator based this prohibition on the materiality of the immateriality of the crime and the process of committing the criminal behavior, considering that publishing and publicity are the only criteria, that either of them is required in any criminal behavior. Once either of the two criteria is present, the legislator has to oblige by setting the penalty as a criminal punishment for this behavior so that it is not freedom deprivation, regardless of the description or job of the one committing the behavior.

The constitutional legislator has set as a criterion the process of committing the crime, not the person or description of its perpetrator. The legislator didn’t set a condition of a specific quality as being a journalist, author, writer, artist, creator, producer, publisher, printer, distributor, or others, but they set it as a general rule applicable to all individuals. The legislator only made three exceptions to the crime forms, exclusively, which are the crimes related to inciting violence, discrimination among citizens, and libeling individuals.

The constitutional legislator has also set constitutional protection over the right to use public means of telecommunication in all their forms. The legislator prohibited the abuse of depriving citizens of their use.

Public means of telecommunication, traditional or innovative, in all their forms and kinds, are tools for the expression of opinions by publishing, speech, writing, or photography. The aim of prohibiting setting freedom deprivation penalties for publishing and publicity crimes as a general rule is to protect the individuals addressed by the Constitution’s provisions from despotism, tyranny, terrorization, or threats to their personal freedoms that they might be exposed to by the executive, or legislative authorities due to expressing their opinions.

In contradiction with the mentioned above, the legislator missed reviewing Article 76 of the Telecommunications Law after the provisions of this constitution came into force. Knowing that the law included both penalties of confinement to prison and a financial fine that should be no less than 500 Egyptian pounds and no more than 20,000 Egyptian pounds or either of these two penalties as a criminal punishment for the crime of intentional disturbance of others by abusing telecommunication means.

The effect of applying the text is not limited to a mere freedom deprivation penalty for up to three years. Its effect extends beyond this potentiality. The application of the text justifies cautionary detention for as long as the case is heard.

This is because the freedom deprivation penalty set by this article may be up to three years, which entails potential unjustified harm to the personal freedom of the defendant. It may also entail unjustifiable harming of the defendant’s constitutional rights to move and residence.

The behavior of disturbing others cannot by its nature be a form of inciting violence, or discrimination among citizens or to constitute a form of defamation against individuals. Disturbance is just upsetting the victim due to the perpetrator abusing telecommunication means. Accordingly, setting a penalty of confinement to prison for no less than 24 hours and up to three years as a freedom deprivation penalty for this crime constitutes a stark violation of constitutional provisions.

The text of Article 76 of the Telecommunications Law constitutes a violation of individual freedoms, especially personal freedom upheld by Article (54) of the Constitution, and the freedom of moving and residing upheld by Article (92) of the Constitution, and it implies a dire fault in its current form making it suspicious for unconstitutionality.

Second: Violation of the principle of the legitimacy of incrimination and punishment

The ambiguity and vagueness of the text of Article 76 of the Telecommunications Law are the main causes of the emergence of issues in its application as shown previously. The ambiguity and vagueness are not limited to the expansion of the concept of disturbance, but they extend to the nature of the means of telecommunication used for committing the crime.

The telecommunication means used is the first condition or element required for establishing the crime. The text of Article 76 applies to wired and wireless means of telecommunication, but a large number of those responsible for applying the law think the means of telecommunication that use electronic processing, or information technology means, or done through an information system or network are among the means of telecommunication subject to the text of Article 76.

This is even though these means of telecommunication are excepted from the provisions of the Telecommunications Law, as the legislator has issued a special law for regulating their provisions, especially concerning incrimination and punishment, which is the Anti-Cyber and Information Technology Crimes Law (The Cybercrime Law) 175/2018. The reason for this problem is that the legislator didn’t review the text of Article 76 of the Telecommunications Law after issuing the Cybercrime Law.

The ambiguity and vagueness are also manifested concerning the second and third conditions required for establishing the crime. These are the direct communication between two parties one is the sender (the perpetrator), and the other is the receiver (the victim) in private.

A large number of those responsible for applying the law however still think that the legal model of the intentional disturbance of others set by this text is applicable to any behavior even if it can’t be imagined to be committed except in public, without any direct communication between the perpetrator and the victim. An example of this is publishing in all its forms including writing posts or publishing photos on social media networks.

This entailed ambiguity and vagueness rendered the text of Article 76 unintelligible and opaque. Applying the text of the article became connected to the personal meanings, likings, and interpretations of those responsible for its application. This in turn led to differences within the judiciary concerning the text of the article and a multiplicity of court approaches and interpretations.

Some courts incriminated the act as long as it was committed in private, through direct communication between two parties a sender and a receiver. Other courts incriminated the act in publishing and publicity crimes using information technology, electronic processing, or an information system or network which are means of telecommunication not subject to the text of Article 76 of the Telecommunications in the first place. The latter approach of the courts depended on an interpretation of the text that considered Article 76 to be addressed to everybody and wasn’t limited to a specific means, nor does it set conditions of publicity or direct communication or their absence, for the accountability for the behavior incriminated by it.

Based on the above, it shows that the text of Article 76 is deeply defective and violates the Constitution. The text violates the rule of punitive texts that they should be formulated in narrow limits, defining the acts incriminated by the legislator, and determining their nature to ensure that the ignorance of them can’t facilitate the violation of rights upheld by the Constitution for citizens.18

Additionally, Article 76 of the Telecommunications Law violates Articles 95 and 96 of the Constitution, Articles 11 and 29 of the Universal Declaration of Human Rights, all the international charts, as well as the constitutions and concepts of democratic states, and what the rulings of the Supreme Constitutional Court have upheld concerning the natural rights that can’t be violated or constrained. Thus, the text of Article 76 has become subject to suspicions of unconstitutionality for its legislative defects that violate the Constitution’s provisions.

Third: The severity of the freedom deprivation penalty set for the crime is disproportionate to the incriminated behavior

The basic principle for a punishment is its rationality and interference with it should be limited to necessity.19 Punishment shouldn’t be a tool that assaults freedom, represses, or constrains it in violation of the values accepted by democratic states in their different forms of behavior.20

The legal rule is only necessary if it is set to deal with a specific situation justly without exaggeration. Its application in this manner guarantees dealing with the situation rationally, which is expressed by proportionality. This shows that the necessity leading the legislator into incriminating a specific behavior assumes that this incrimination and its degree are proportionate to their objective.21

The penalty of freedom deprivation shouldn’t be too severe. The punishment should be proportionate to the incriminated act. This criterion is tightly connected to the constitutional right to personal freedom and what it entails of not harming this freedom except with the limit necessary for achieving the objective targeted by the penalty. Deterrence, in both its public and private parts, doesn’t emerge in the first instance from the severity of the penalty as much as it emerges out of the competence of the state to apply it to all wrongdoers.22

In contradiction with the above, the freedom deprivation penalty set as a criminal punishment for the crime of intentional disturbance of others in Article 76 of the Telecommunications Law, has a great exaggeration and severity. The penalty is not proportionate to the incriminated behavior, which was defined as a disturbance of the victim or troubling their peace of mind and upsetting them. The criminal interest protected by Article 76 is no more than the tranquility of the victim.

If the penalty set for this crime is put in comparison with the penalties of crimes that protect more important and crucial interests like libel and defamation, for example, it shows how disproportionate it is to the incriminated behavior. Penalties of libel and defamation don’t include freedom deprivation penalties.

The crime of defamation is meant to protect the human dignity of the victim. Its incriminated behavior is damaging the respectability of the victim and demeaning their dignity. The penalty for defamation is a financial fine of no less than 2000 Egyptian pounds.23

The crime of libel is also meant to protect human dignity and the rule of innocence for the victim. Its incriminating behavior is designating to the victim acts that damage their dignity, making them despised by their countrymen.24 The penalty for libel is a financial fine of no less than 5000 Egyptian pounds and no more than 15,000 Egyptian pounds, and if the victim is a public servant, has public representation, or is delegated for public service and was libeled because of their work the penalty is a fine of no less than 10,000 Egyptian pounds and no more than 20,000 Egyptian pounds.

Accordingly, it can’t be imagined that mere disturbance of the victim is more dangerous and damaging for their interests and rights than damaging their respectability and demeaning their dignity so that the legislator sets for disturbance a criminal punishment that deprives the defendant of their freedom for up to three years.

It shows out of the aforementioned that the freedom deprivation penalty is disproportionate to the criminal behavior set by Article 76 of the Telecommunications Law. The penalty is also not proportionate to the interests it protects, implies a great exaggeration and severity, and constitutes an obvious violation of the constitutional right to personal freedom rendering it suspected of unconstitutionality.

Recommendations

Masaar – Technology and Law Community recommends:

Originally, the full second paragraph of Article 76 of the Telecommunications Regulation Law should be abolished, as the various forms of criminalizing disturbance contained in other Egyptian laws are sufficient.

The formulation of the article’s text after the recommended amendment:

Article 76

Without prejudice to the right for suitable indemnity, a penalty of confinement to prison

and a fine not less than five hundred Egyptian pounds and not exceeding twenty thousand Egyptian pounds

or either penalty shall be inflicted on whoever: used or helped to use illegal means for telecommunication.

For cautionary purposes, the text of Article 76 with both its paragraphs is kept with adding a statement explaining the context for issuing the incriminating text, which is that it was issued to deal with cases of intentional disturbance or harassment in non-public contexts. This takes the text out of the constitutional prohibition of confinement in publishing or publicity crimes.

The formulation of the article’s text after the recommended amendment:

Article 76

Without prejudice to the right for suitable indemnity, a penalty of confinement to prison

and a fine not less than five hundred Egyptian pounds and not exceeding twenty thousand Egyptian pounds

or either penalty shall be inflicted on whoever:

1 – Used or helped to use illegal means for telecommunication.

2 – Intentionally disturbed or harassed others by abusing means of telecommunication in non-public contexts.

Finally, for total precaution, abolishing the freedom deprivation penalty and keeping the financial fine while affirming the purpose of issuing the text with the explanatory memo attached to the proposed amendment.

The formulation of the article’s text after the recommended amendment:

Article 76

Without prejudice to the right for suitable indemnity, a penalty of a fine not less than five hundred Egyptian pounds and not exceeding twenty thousand Egyptian pounds shall be inflicted on whoever:

1 – Used or helped to use illegal means for telecommunication.

2 – Intentionally disturbed or harassed others by abusing means of telecommunication

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