In this paper:
- Forms of behavior criminalized by Article 25 in the Anti-Cyber and Information Technology Crimes Law (Cybercrime Law).
- Defining the crime of non-consensual flood-sending electronic messages to a specific person.
- General Prosecution (GP) methodology for charging with the crime and referring it to a criminal trial.
- Cairo Economic Court (CEC) interpretation of flood-sending messages crime.
- The effect of the divergence of both the GP orientation and the judicial interpretation of flood-sending messages crime.
Introduction
The Anti-Cyber and Information Technology Crimes Law (Cybercrime Law) has handled the sanctity of private life in a separate chapter under the title of “Crimes Related to Violating the Sanctity of Private Life and Informatic Illegal Content.” The chapter includes Articles 25 and 26, whose wording was messy and unclear. This is due to the unclarity of the law’s language in general, particularly in Articles 25 and 26. This unclarity caused several interpretations of some of this chapter’s statements to exist, which led in different judicial applications of the article to it being used as a form of private life’s protection, and in other cases as constraining the users of social media means and recreational software. Although one of the main objectives of issuing the Cybercrime Law is the protection of private life, as pointed out by both the explanatory note and the joint parliamentary report of the Parliament while discussing the law1, the final wordings of the law didn’t express those objectives.
This paper presents some of the basic characteristics of the flood-sending messages crime, explaining the most important judicial applications related to this crime in order to understand the interpretations the Egyptian courts have reached as a first step toward determining the legislative impact of the adoption of Articles 25 and 26.
Forms of Criminal Behavior specified by Article 25 of the Cybercrime Law
Article 25 has included several forms of assaulting the sanctity of private life and of illegal informatic content. The legislator has criminalized all these forms as criminal behavior and set punishment for them up to six months in prison, and a fine of no less than 50,000 EGPs, and no more than 100,000 EGPs, or either of them. These behaviors can be enumerated as follows:
- The crime of violating any of the family principles or values in the Egyptian society or violating the sanctity of private life.
- The crime of non-consensual flood-sending electronic messages to a specific person.
- The crime of non-consensually providing personal data of a specific person to a system or an electronic site for marketing goods or services.
- The crime of publishing, through the Internet or any information technology, information, news, photos, or their likes, which violate a person’s private life without his/her consent, whether the published information were true or false.
The Definition of the Crime of Non-Consensual Flood-Sending of Electronic Messages
The Crime of Non-Consensual Flood-Sending of Electronic Messages, like other crimes, is conditioned by the general rules of crime. It thus has a material aspect as well as a moral one. The legislator has set two penalties for it, one of them is liberty depriving, which is imprisonment for six months, and the other is financial which is a fine of no less than 50,000 EGPs. The crime is also considered to be an intentional one. This, its materialization only requires that this who committed it be in the know of his/her criminal act and his/her will is oriented toward realizing it.
The legislator has defined the material aspect of this crime as “sending a massive amount of electronic messages to a specific person, without his or her permission, regardless of the content of these messages.” It is understood of this that the legislator has conditioned the realization of the material aspect of the crime on the combinatory existence of essential conditions.
First Condition: The nature of the messages “the electronic messages”
The sent messages should be electronic, and not of any other form of messages. For instance, SMSs sent through a direct communication and transmitting system are not conducive to this crime.
Second Condition: Disapproval of receiving the messages
The disapproval of the sent-to person of receiving the messages. The crime is conditioned by the inability of the sent-to person to stop these unwanted messages or such incurred additional costs. Otherwise, if receiving the messages is voluntary and conditioned by the sent-to person’s will alone, then failing to stop them is considered an implied approval on his/her side. In case the sent-to person has the power to stop receiving the messages and didn’t use it, it is difficult for the crime to materialize.
Third Condition: The victim’s person “A natural person”
Article 25 of the Cybercrime Law hasn’t mentioned a condition that the receiver of the irritating messages should be a natural person. The general context of issuing the article indicates that its objective is protecting Internet users’ privacy. The protection of privacy includes the encroaching of marketing means that are used by some companies, through the use of systems and electronic processing procedures for sending messages to many Internet users in a regular or arbitrary manner. Accordingly, the nature of the persons protected by the law as per this article are natural persons, and it’s difficult to imagine that this protection extends to messages received by legal persons such as companies, trade unions, clubs, collectives, administrative entities, and others.
Fourth Condition: Flood-Sending
The legislator set a condition of flood-sending. The law however hasn’t set objective criteria to base the determination of the flood-sending concept on them, leaving it to the subjective court to perform its discretional power to determine if flood-sending occurred as per the circumstances of each incident.
Accordingly, Egyptian courts may resort to one of the following four criteria to determine if flood-sending occurred realizing the material aspect of the crime, or not.
- First Criterion: The necessity that more than one message was sent.
- Second Criterion: A time range for sending messages. The court may find that a flood-sending has occurred if it notices a fast chronological follow-up of sent electronic messages or a regular timing.
- Third Criterion: The content, and meaning of the messages sent to the victim, to determine the extent of intense and irritating sending occurrence as per the message’s content which often takes an advertising form.
- Fourth Criterion: Use of an electronic system for the processing procedure used for sending. The court may resort to investigating the electronic processing and the electronic system used for sending to determine the extent of sending intensity, or to determine if the sent messages target a limited number of persons or if they are arbitrary. The United States of America’s Supreme Court has adopted this criterion in a sentence against Facebook2. Despite the attempt of deriving objective criteria and conditions to determine the case of flood-sending of electronic messages, the judicial applications in this concern are still absent, and we haven’t yet reached a specific unanimous judicial interpretation as a general rule.
General Prosecution’s Method for Charging with the Crime and Referral to Trial
The GP has been keen on implementing only the incriminations and penalty articles of the Cybercrime Law. This is clearly reflected in GP statements since the Attorney General established the “Explanation and Guidance” directorate, and its most important unit, “Monitoring and Analysis Unit”. In this context, the GP has expanded a lot in charging with committing information technology crimes, especially the ones specified by Articles 25 and 27 of this law3, without setting an objective criterion on which it bases indictment with these crimes.
Concerning the crime of non-consensual flood-sending electronic messages to a specific person, it can be said that the GP assigns charges with this crime in many cases including in association with charges of libel or threatening to commit a crime through text or audio messages through any social media application, deeming the committal of any of these acts liable to the application of the legal model of the crime of flood-sending messages. The GP has also considered the crime -in an absolute form- as one of the crimes representing a moral implication of the crime of disturbance specified by the second paragraph of Article 76 of the Telecommunication Law and associated both crimes as implying each other in presence and absence, thus both materializing once any of the behaviors specified by the article was enacted.
This method is not an individual orientation limited to some of the GP members, or any of its divisions on its own, but it seems to be generalized, leading to the issued referral orders -including charges with the crime of non-consensual flood-sending electronic messages to a specific person- pseudo-typical, which can be represented by the following form:
“We … agent of the Attorney General, after reading the file of Case number … for year … have decided the following:
The document to be registered as a misdemeanor as per Articles 166 (repeated), 1/302, 308 (repeated 1 and 2) of the Criminal Code, Articles 70, 1/76 clause 2 of Law number 10/2003 concerning Communications Regulations, and Articles 1, 12, and 25 of Law number 175/2018 concerning Combating Information Technology Crimes.
Vs. … (the defendant)
As on … (date), in the jurisdiction of … Police Department
First: He/She insulted the victim … by phone, sending him by WhatsApp social media application, messages that express insult and libel as indicated by documents.
Second: Libeled the victim … by phone, sending him by the above-mentioned social media application messages expressing information if true has the consequences of legally punishing the victim, as indicated by documents.
Third: Intentionally irritating and harassing the above-mentioned victim by abusing telecommunication devices, sending him/her messages expressing insult or libel, the matter of the first and second charges through the above-mentioned application, as per indicated by documents.
Fourth: Flood-Sent many electronic messages to the above-mentioned victim, the matter of the previous three charges, without his/her consent, as indicated by documents.“
Economic Court Interpretation of the Flood-Sending Messages Crime
The issue of the Cybercrime Law executive regulations was followed by the referral of many criminal lawsuits to economic courts4. These lawsuits included charges of committing one or more information technology crimes specified by the third part of the law. The criminal circlets of these courts have worked on interpreting the verses and provisions of the law, especially the ones related to ruling, procedural rules, crime, and penalties.
With the proliferation of issued rulings in these cases, some judicial orientations interpreted the law’s crimes. At the head of these crimes came the ones related to assaulting the sanctity of private life and illegal informatic content specified by Articles 25 and 26, especially Article 25 which included 4 forms of incriminated behavior. In this context, we explore the Cairo Economic Court’s (CEC) interpretation of the non-consensual flood-sending of messages to a person being the commonest in the cases referred to the court.
The latest rulings of the CEC have revealed specific orientations in defining and interpreting the non-consensual flood-sending of messages crime. These definitions included differentiating the messages subject to the provisions of the law from the ones not subject to them; the conditions required for an electronic processing procedure; and defining the concept of flood-sending. These aspects may be indicated as follows:
First: The messages subject, and the ones not subject to the Cybercrime Law provisions
The messages subject to the provisions of the law: The messages that went through an electronic process or technology of data processing and were sent through an electronic process or technology prepared for this are subject to the provisions of the Cybercrime Law (175/2018), so its first article definitions are applicable to them, particularly the definition of “electronic processing.”
The messages that are not subject to the provisions of the law: Short direct text messages sent through the communications and direct transmission system, without being electronically processed by their sender are mainly not subject to the provisions and rules of the Telecommunication Law (10/2003), or the Cybercrime law (175/2018).
The law has defined electronic processing to be “any electronic or technological process that’s carried out entirely or partially for writing, assembling, recording, storing, merging, displaying, sending, receiving, exchanging, publishing, deleting, changing, retrieving or deriving electronic data or information, by using a medium of media, computers, or other electronic, magnetic, or light devices, or whatever is newly created of other technologies or media.”
Second: The required conditions for carrying out an electronic processing procedure
The court has settled on the necessity of the combined presence of two conditions for the carrying out of an electronic processing procedure of these messages so that the elements of the crime’s material aspect are present, these two conditions are:
First Condition: The use of an electronic medium for committing the crime.
Second Condition: Carrying out an electronic process or technology for processing the data.
The rulings of the court have also settled that the absence of either of these two conditions voids the material aspect of the crime. The material aspect of the crime is also voided if the nature of the sending process was not as per the concept perpetuated by the court’s rulings.
Third: Defining the concept of flood-sending
The court’s interpretation has included a definition of the process of flood-sending electronic messages. It defined it to be “a form of unwanted advertisements which is usually used by automatic bots as a processing technique. They are sent to many recipients or published in many locations using an electronic process or technology to carry out the act. It is known as Spam messages.”5
It’s noticed in the previous definition that the court has differentiated between two things:
1 – The nature of the medium of the tool used for sending the messages
The court excluded social media and instant chat applications from the electronic applications used for flood-sending messages. For instance, the court has excluded “WhatsApp” from the media through which the crime is committed. The court has moved on to reach a conclusion that sending messages, even with intensity, using social media applications like Facebook Messenger, Telegram, WhatsApp, Twitter, …, is not subject to the legal model of the crime but is subject to the legal model of other crimes e.g., the intentional irritation of others as per Article 76 of the Telecommunication Law.
2 – The special nature of the irritating message’s sender
The CEC sees that the act of sending, in the crime of sending irritating messages, is carried out through electronic processing or technology by a robot, and not directly by a natural person. The messages sent to private accounts on social media applications like Facebook Messenger, Telegram, WhatsApp, and Twitter, …, directly by natural persons, are not subject to the legal incriminating model of the crime of the non-consensual flood-sending of electronic messages, while this model is applicable to text messages, email messages and posts on the Internet.
As proof of the above, CEC has ruled the following: “as for the subject matter of the third charge concerning the crime specified by Article 25 of the Anti-Cyber and Information Technology Crimes Law (175/2018) relating to flood-sending of messages by the defendant; the wording of the article is that to be punished by imprisonment for no less than six months, and a fine of no less than 50,000 EGPs, and no more than 100,000 EGPs, or either of these two penalties, whoever violated any of the family principles or values in the Egyptian society, assaulted the sanctity of private life, or non-consensually flood-sent many electronic messages to a person. The definition of electronic processing in the first article of the Anti-Cyber and Information Technology Crimes Law (175/2018) states that electronic processing is any electronic or technical process that is carried out entirely or partially for writing, assembling, recording, storing, merging, displaying, sending, receiving, exchanging, publishing, deleting, changing, retrieving or deriving electronic data or information, by using a medium of media, computers, or other electronic, magnetic, or light devices, or whatever is newly created of other technologies or media. And as what the defendant has committed was through a medium of communications, and though the used device was a mobile phone which is considered an electronic device, he sent short text messages directly without using electronic processing. Instead, he committed the act through the direct communication and transmission system which is punishable by the Telecommunication Law, and is not subject to the first article of the Anti-Cyber and Information Technology Crimes Law that interpreted electronic processing to imply two conditions; first the use of an electronic medium, and second the use of an electronic process or technology, which was not used by the defendant, as his messages were direct text messages from a phone to the other through WhatsApp. And though WhatsApp is an electronic application, and it was proved that the defendant has sent many messages through it, insulting and libeling the victim, by these applications are not technical processors used for flood-sending, they are applications and programs used for social communications as the court sees that the description of flood-sending is an example of a form of unwanted advertisements that are usually used by automatic robots as a processing technique like email messages, text messages or Internet posts, sent to many recipients or published in many places using an electronic technology or process for committing this act, which is not in congruence with the charge in the article of the Anti-Cyber and Information Technology Crimes Law, hence the court rules with acquitting the defendant of these charges.”6
The court has also ruled in an identical case that “As what the defendant’s acts were by a communication medium, and though the used device is a mobile phone which is considered an electronic device, and though WhatsApp is an electronic application, and it was proved that the defendant has sent a number of messages through WhatsApp insulting the victim, except that such applications are not electronic processors used for flood-sending, but they are applications and programs used for social communications as the court sees that the description of flood-sending is an example of a form of unwanted advertisements that are usually used by automatic robots as a processing technique like email messages, text messages or Internet posts, sent to many recipients or published in many places using an electronic technology or process for committing this act, which is called (Spam), which is not in congruence with the charge in the article of the Anti-Cyber and Information Technology Crimes Law, hence the court rules with acquitting the defendant of these charges, as will be indicated by the ruling text.”7
The Effect of the Divergence between the GP Orientation and the Judicial Interpretation of the Criminalizing Text
The interpretation of the GP is different from the one of the economic courts concerning the crime of non-consensual flood sending messages to a specific person. This difference reached a total contradiction. The situation this is circulating between the non-objective orientation of GP in using the article as a criminalizing text to the extent of taking it out of its own context and assuming an end not meant by the legislator on issuing the law, mixing it with the text of the crime of irritation in the Telecommunication Law, in contrast to the rulings of courts, at their head the CEC, and their interpretations that came contradicting the GP orientation, thus they ruled with the acquittal of most of the charges filed by the GP against the defendants. These ruling -mentioned above- came based on the incongruence of the criminalizing text of Article 25 with the incident subject to charges.
Regardless of the above, the GP is still continuing the same course, charging arbitrarily with an out-of-context citation of the law article text, and referring criminal lawsuits based on charges not meant by the legislator in this text, thus voiding the constitutionally guaranteed freedoms and rights.
References
1 A report issued by the joint committee of the Communications Commission and the Offices of Constitutional and Legislative Affairs and Defense and National Security, dated May 2018.
2 The Supreme Court of the United States of America has ruled, concerning a lawsuit filed against Facebook, including the court interpretation of a legal article of the TCPA, which is related to consumer protection and prohibit the use of automatic program for making phone calls or sending text messages to the consumers without explicit consent. In its ruling the court has differentiated between to types of such sending and found the first type -using electronic system and technical processors for making phone calls and sending text messages, arbitrarily to undefined persons, is the one prohibited by law, while the second type which is using electronic systems and technical processors for calling and sending messages to defined persons, is not prohibited as per its interpretation of the law.
3 Article 27: In cases other than those stipulated in this law, whoever establishes, manages or uses a website or a special account on an information network that aims to commit or facilitate the commission of a crime punishable by law, shall be punished by imprisonment for a period of no less than two years and a fine of no less than 100,000 EGPs and not more than 300,000 EGPs, or either of these two penalties.
4 The executive provisions of the Cybercrime Law were issued by the prime minister executive order (1699/2020).
5 Cairo Economic Court, ruling in case (2224/2021 – economic misdemeanor), hearing on January 24th,2022.
6 See:
CEC ruling, hearing on March 29th, 2022, in case 121/2022 economic misdemeanors.
CEC ruling, hearing on February 28th, 2022, in case 141/2022 economic misdemeanors.
CEC ruling, hearing on January 24th, 2022, in case 2093/2021 economic misdemeanors.
7 See:
CEC ruling, hearing on January 24th, 2022, in case 2224/2021 economic misdemeanors.
CEC ruling, hearing on January 24th, 2022, in case 2236/2021 economic misdemeanors.