The Egyptian Telecommunication Regulation Law, issued in 2003, encompasses all provisions governing the telecommunication sector. This includes the general rules for obtaining licenses and permits necessary to operate in Egypt, as well as the regulations that service providers must adhere to when providing telecommunication services. Additionally, the law addresses the establishment and powers of the National Telecommunications Regulatory Authority (NTRA).
The Telecommunication Regulation Law was built on the philosophy of being comprehensive regarding all matters related to the telecommunication sector. As such, the law includes a separate section on certain offenses. Most of these offenses primarily address service providers to elucidate the penalties for violating the prescribed regulations for operating under this law. However, some other offenses target users of telecommunication means, such as the crime of using unauthorized means for communication or intentionally disturbing and harassing others through misusing telecommunication devices. These offenses have been directed at a significant number of users over the past two decades.
In 2018, the Anti-Cyber and Information Technology Crimes Law (Cybercrime Law) was enacted. In contrast to the Telecommunication Law, which included a single depiction of the offense of intentional disturbance, the Cybercrime Law expanded the criminalization of “intentional disturbing” and “misuse of telecommunication devices.” Due to the ambiguous provisions in the Cybercrime Law and the general provisions in the Telecommunication Law, there has been a dual application of multiple punitive texts in different laws.
This paper aims to provide an explanation of the offense of “intentional disturbance and harassing through misusing telecommunication devices” by highlighting the legislative evolution of the concept of disturbance, starting from the Egyptian Penal Code and extending to the Cybercrime Law. The paper also discusses the stance of Egyptian courts regarding the offense and their attempts to formulate a definition of the concept of disturbance. Furthermore, the paper seeks to explain the manifestations of criminal behavior according to certain judicial provisions, in addition to clarifying the issues related to the elements of the offense and how they impact the users of telecommunication means.
The Context of “intentional disturbance” in Various Egyptian Laws
The crime of intentional disturbance is among the crimes specified in various laws, including the Penal Code, the Telecommunications Law, and the Cybercrime Law. The concept of the crime has undergone legislative development, which can be observed by understanding the contexts in which the crime was established in each law separately, as follows:
Firstly: The Context and Concept of Intentional Disturbance under the Penal Code
The crime of intentionally disturbing others emerged for the first time with the amendment of the Penal Code and Criminal Procedures in March 1955. The legislator introduced two crimes in that amendment, namely the crime of intentionally causing disturbance to others “by misusing telecommunication devices,” which is stipulated in Article 166 bis, and the crime of defamation and slander through telephony, which is stipulated in Article 308 bis.1
The Ministry of Justice prepared an explanatory memorandum for the draft amendment to the Penal Code, which introduced the text of Article 166, 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.”2
On the same day that Law No. 97 of 1955 was issued, which introduced Articles 166 bis and 308 bis in the Penal Code, another law was issued, namely Law No. 98 of 1955, to add Article 95 bis to the Code of Criminal Procedure. Article 95 bis is the first legislative regulation in Egyptian criminal law to monitor telephone calls.
This addition was made because the crime of causing disturbance using telecommunication means is one of the crimes that occur in secrecy and it is difficult to prove evidence of its commission except in 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.”3
The legislator did not define the concept of disturbance in the amendments to the Penal Code. The text of Article 166 bis does not contain any criteria that can be relied upon to define disturbance or indicate its extent. The Court of Cassation attempted to provide a definition of the concept of disturbance and distinguish the crime of intentional disturbance from other crimes.
The Court of Cassation found that the definition of disturbance according to the text of Article 166 bis is not limited to defamation and slander because the legislator addressed them in Article 308 bis, and the court defined disturbance as encompassing any statement or act intentionally committed by the perpetrator that causes discomfort to the individual.4
The Court of Cassation relied on the explanatory memorandum of Law No. 97 of 1955 in this definition. This is evident in one of its rulings that addressed the interpretation of the text of Article 166 bis of the Penal Code.
The court stated, “From this explanatory memorandum, it is clear that the addition of these two articles was due to the increase in assaults on people through defamation and slander via telephone, and the problem of disturbing them day and night, and subjecting them 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, the legislator intervened to put an end to this abuse and to strike at the hands of these reckless individuals. Since this is the case, and disturbance, according to the text of Article 166 bis of the Penal Code, is not limited to defamation and slander because the legislator has addressed them in Article 308 bis, so it extends to any statement or act intentionally committed by the perpetrator that causes discomfort to the individual.”5
Secondly: The Context and Concept of Intentional Disturbance under the Telecommunication Regulation Law
The provisions of Article 166 bis of the Penal Code remained in effect until the issuance of the Telecommunication Regulation Law No. 10 of 2003. The law provided comprehensive legislative regulations concerning telecommunications at that time, including a set of definitions, among them a specific definition of telecommunications. The law defined telecommunications as “any means of sending or receiving symbols, signals, messages, writings, images, or sounds, regardless of their nature, whether wired or wireless.“6
Furthermore, the law included in Chapter Seven a range of criminal penalties for violations of its provisions. Among these penalties is 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.”7
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 effect, 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 legislator expanded in the Telecommunication Law in criminalizing the means of committing an offense to include all means of communication, whether traditional telephonic or other forms of wired and wireless communications.
The legislator’s view of the concept of disturbance in the Telecommunication Regulation Law did not differ from its interpretation in the Penal Code.
Likewise, the interpretation of the Court of Cassation regarding the concept of intentional disturbance and harassment in this law did not differ from its interpretation in the Penal Code, as it echoed the same interpretation. The court concluded in its rulings that the crime of misuse of telecommunication devices, according to Article 76 of the Telecommunications Law, “is not limited to mere disturbance, but extends to any statement or act intentionally causing distress or disturbance to the citizen, regardless of the type of telecommunication devices used or the means by which they are used.“8
With the emergence of some jurisprudential and academic attempts to interpret the concept of disturbance in this law, the criminal circuits in the ordinary courts and the economic courts – each according to its jurisdiction – relied on different interpretations. The most common interpretation among its judges and the most frequently used in their rulings is that “the intended disturbance or harassment here is when a person uses telecommunication devices in a way that disturbs or harasses the other party, and the legislator considers this act a crime if it occurs through any communication device, whether it is a telephone, a computer for data and information transmission, email, electronic messages, the Internet, television communication, or other means of communication. Therefore, any disturbance or harassment through all these devices constitutes a crime under Article 76, paragraph two, of the Telecommunication Law. Whoever sends messages via the Internet or on a mobile phone that includes disturbance or harassment to the recipient is considered the perpetrator of this crime, and it is up to the judge to determine whether the committed act constitutes disturbance or harassment to the recipient or not. It is an objective matter that varies from one case to another.”9
Thirdly: Multiple Concepts of Disturbance under the Cybercrime Law
The provisions of the Telecommunication Law remained in effect until the issuance of the Anti-Cyber and Information Technology Crimes Law No. 175 of 2018. The law introduced comprehensive legislative regulations from both substantive and procedural perspectives regarding information technology.
The law also included a set of definitions, including a specific definition of everything that can be described as information technology, electronic data and information, information systems and networks, websites, personal accounts, email, digital directories, and other definitions that defined the scope of the application of the provisions of this law.
The third chapter of the law encompasses a set of criminal penalties for violations of its provisions. Among these penalties are those related to offenses that constituted multiple forms of disturbing others prior to the enforcement of the law. The legislator has specifically defined “disturbing others” in the law, categorizing each form as an independent crime. For each form, a specific provision has been established, including a set of specific controls, provisions regarding the elements of the crime, its presumed conditions, and the prescribed punishment.
Unlike the Telecommunication Law, the legislator did not include a general provision for the crime of disturbing others. The crimes for which the legislator introduced specific provisions in the Cybercrime Law include offenses related to unauthorized access to websites or private accounts, assault on email, websites, or private accounts, website design assault, fraud, and assault on bank cards and electronic payment tools, creation of fake websites, private accounts, and emails, assault on the privacy of personal life, and unlawful informational content.
The necessary condition for the commission of the crime of intentional disturbance
In order to understand the purpose of criminalizing the behavior of misuse of telecommunication devices to cause disturbance to others, it is necessary to refer to the explanatory memorandum of Law No. 97 of 1955. This is to attempt to infer the meaning of disturbance without arbitrariness or an excessive expansion of criminalization, considering that the default assumption regarding actions is permissibility, and criminalization is a narrow exception governed by specific controls that should not be exceeded beyond the legislator’s intent and purpose of criminalization.
The explanatory memorandum stated that the true purpose of criminalization is to fill the gap in criminal legislation by punishing acts of defamation and slander committed privately. Based on this, the legislator introduced Article 308 bis of the Penal Code to criminalize any behavior that includes defamation or slander committed privately through the telephone, as well as the text of Article 166 bis, which was copied in Article 76 of the Telecommunication Law, to criminalize any disturbance experienced by the victim through the use of telecommunication means privately.
This indicates that when the legislator introduced the crime of intentional disturbance using telecommunication means, there was no legal basis to regulate the issue of monitoring telephone conversations. Furthermore, the Criminal Procedure Law at that time did not provide any legal framework for surveillance that allows for the detection of this crime, which occurs in private.
This rendered the application of the provisions of Article 166 bis and Article 308 bis impractical, as it became impossible to prove the commission of either crime as they occur in private. This prompted the legislator to add Article 95 bis to the Criminal Procedure Law, which pertains to the monitoring of phone calls in cases of committing one of the crimes stipulated in Articles 166 bis and 308 bis.
Consequently, there is now criminalization of behavior that can only be imagined to occur privately, namely intentional disturbance using telecommunication means, as well as defamation and slander using telecommunication means. There is also a legal basis that allows for the disclosure of this secrecy through Article 95 bis of the Criminal Procedure Law.
The above confirms that the common and most important criterion in these behaviors is that they occur in private and are only perceived by the perpetrator and the victim. Therefore, if any of these behaviors occur publicly, the legal model of the crime does not apply to them, regardless of whether they are perceived by a distinct or indistinct group of individuals. The crucial factor is the absence of publicity. Hence, for the commission of the crime of intentional disturbance using communication means, it is required that it occurs privately using one of the specified telecommunication means, without delving into the nature of the behavior and the extent of disturbance it entails.
The admissibility of reconciliation in the crime of intentional disturbance using telecommunication devices
The crime of intentionally disturbing or harassing others through misusing telecommunication devices is not one of the crimes in which the right to report, reconciliation, or settlement is permissible.10 The Telecommunication Law does not stipulate the possibility of reconciliation or settlement regarding any of the crimes specified therein.
Moreover, this crime is not among the crimes in which reconciliation with the victim is permissible, as exclusively defined in Article 18 (A) of the Criminal Procedure Law.11 The conditions for reconciliation specified in the same law, Article 18 (A),12 also do not apply to this crime. Consequently, reconciliation with the victim has no effect on the expiration of the criminal lawsuit, and the court is empowered to impose the prescribed punishment for the crime if it is proven that the accused has committed the crime. The court also has the right to exercise its discretion to suspend the execution of the punishment if it deems any of the reasons for a suspension to be present.
The matter differs with regard to the Cybercrime Law, which includes provisions allowing for reconciliation and settlement in some of its offenses that constitute forms of disturbance by using telecommunication means. The law permits reconciliation with the aggrieved party or their authorized representative in crimes such as unauthorized access to a website or electronic account, exceeding the right of access, unauthorized interception, assault on data, information, and information systems’ integrity, assault on email, websites, or private accounts, assault on website design, fraud, assault on bank cards, electronic payment services, and tools, after reconciliation is approved by the NTRA.
Furthermore, the law allows for reconciliation in offenses involving processing personal data using an information program or information technology to link it to content contrary to public morality and tampering with digital evidence of a criminal offense with the intent to obstruct the work of investigating authorities.
The multiplicity of criminal legislative texts concerning the same act and the multiplicity of procedural texts and regulations have resulted in a situation of duplicity in criminal legislation. Consequently, this has hindered the right to reconciliation or settlement in any of the cybercrimes, which themselves constitute forms of intentionally disturbing others through misuse of telecommunication means, where reconciliation is not permissible according to the provisions of the Telecommunication Regulatory Law.
Challenges in the application of the crime of intentional disturbance through the use of telecommunication means
First: Duplication of Criminalization of the Same Act and the Problem of Text Replication
The provisions of the Telecommunications Law stipulate the annulment of any provision that contradicts its provisions. With the issuance of the law and its entry into force, which includes the crime of “intentional disturbance and annoyance through misuse of communication means” in Article 76, the law replicates the crime of disturbing others through the misuse of telecommunication devices specified in Article 166 bis of the Penal Code.
This constitutes one form of implicit repeal or replication of legal texts, considering that the Telecommunications Regulation Law is a new legislation that establishes a complete regulatory framework for a specific set of circumstances that was previously regulated by earlier legislation. In this case, the previous legislation is completely and comprehensively repealed, provided that there is no contradiction between some provisions of this legislation and the provisions of the Telecommunications Regulation Law, as affirmed by the court of cassation.13 Therefore, a legislative provision can only be repealed by subsequent legislation that is superior to it or equal to it in the hierarchy of legislation, explicitly stating this repeal or containing a provision that contradicts the old legislation or re-regulates the subject matter for which the previous legislation had established its rules.14
Despite that, law enforcement agencies continue to enforce the provisions of Article 166 bis of the Penal Code. Often, the public prosecutor’s office charges defendants under Article 76 of the Telecommunications Regulation Law and Article 166 bis of the Penal Code together for the same act, considering them as a case of moral pluralism of crimes, meaning that the criminal behavior overlaps with multiple offenses. In some cases, the court has convicted defendants of committing both of these crimes.15 This is a clear error because charging under Article 76 of the Telecommunications Law is broader and more comprehensive, encompassing all possible forms of disturbance committed using communication means.
Furthermore, the courts that heard these cases did not include any remarks indicating the annulment of the crime of non-defined disturbance under Article 166 bis of the Penal Code. The courts rendered acquittals based on doubts about the validity of the facts, while the convictions primarily relied on the proven commission of the crime and the punishment of the defendant under the provisions of Article 76 of the Telecommunications Regulation Law as the more serious offense due to the presence of a case of moral pluralism of crimes.
This approach was not limited to criminal courts but also extended to the Court of Cassation. In a recent ruling, the Court of Cassation upheld a conviction for a crime specified in Article 166 bis of the repealed Penal Code.16
Secondly: Jurisdictional Conflict in the Application of Different Laws
The issue of jurisdictional conflict between ordinary courts and economic courts has been a subject of debate and significant disagreement in court rulings when considering criminal lawsuits that involve the prosecution accusing the defendant of intentionally disturbing others under Articles 166 bis of the Penal Code and Article 76 of the Telecommunications Regulation Law. Each court believed itself to be the competent authority to hear the lawsuit, until the latest amendment to the Law Establishing Economic Courts under Law No. 149 of 2019 was issued, which stated in its fourth article:17
“Without prejudice to the competencies assigned to economic courts as stipulated in any other law, economic courts, both at the primary and appellate levels, exclusively and territorially have jurisdiction over criminal lawsuits arising from crimes specified in the following laws: 1)… 2)… 15) Telecommunications Regulation Law.”
With the issuance of the latest amendment to the Law Establishing Economic Courts, economic courts became the competent authority to hear criminal lawsuits arising from crimes specified in the Telecommunications Regulation Law, without prejudice to other courts. However, the prosecution still refers these lawsuits to ordinary criminal courts, which still claim jurisdiction if the crime specified in the Telecommunications Law is linked to a crime falling under their jurisdiction, in adherence to the last paragraph of Article 214 of the Code of Criminal Procedure, which states, “If some crimes fall under the jurisdiction of ordinary courts and others fall under the jurisdiction of special courts, the lawsuit shall be filed before ordinary courts for all crimes unless otherwise provided by law.” This is done without considering the aforementioned amendment in the Law Establishing Economic Courts, which limited the jurisdiction to hear such lawsuits exclusively to economic courts at the primary and appellate levels, without involving other courts.
Position of the Public Prosecution on the Application of the Crime of Intentional Disturbance Using TeleCommunication Means
With the enactment of the Cybercrime Law, there has been a duplication in criminal legislations as a result of the multiple laws regulating a single subject matter and the multiplicity of criminal penal provisions for the same act in more than one law. This has led to a state of ambiguity that has affected the performance of the Public Prosecution, as the competent authority to investigate communication and information technology crimes. This ambiguity is reflected in the framing of charges and the referral of criminal cases to the courts.
The Public Prosecution has greatly expanded the attribution of the charge of committing the crime of intentional disturbance of others through misuse of communication means, as stipulated in Article 76 of the Telecommunications Law, as well as the crime of sending numerous electronic messages intensely to a specific person without their consent, as stipulated in Article 25 of the Law on Combating Information Technology Crimes. This is because the Public Prosecution considered that sending messages intensively is a form of disturbance.
These two crimes are closely related to each other, revolving around the presence or absence of each other, and they are fulfilled together if any behavior is committed that the victim perceives as causing annoyance and disturbance to their tranquility, despite each crime having objective and procedural criteria that differ from the other.18
The expansion by the Public Prosecution in attributing the charge of committing the crime of intentional disturbance of others through misuse of communication devices occurs regardless of verifying the necessary condition for the commission of this crime. This condition is the commission of the crime in secrecy, as the criterion always relies on the absence of publicity to fulfill the legal model of this crime, where only the perpetrator and the victim are aware of its commission. This expansion is evident in directing the accusation of committing this crime to those who commit a behavior publicly or to those who commit a behavior that can only be imagined as being committed publicly, such as writing posts and publishing pictures on social media platforms.
For example, in one case, the Public Prosecution accused the defendant of committing the crime of intentional disturbance using communication means because he used his personal accounts on social media platforms like Facebook and Twitter to write and publish public posts that the Public Prosecution considered to contain phrases that implied insult to the National Elections Authority, as well as false news and rumors that could disrupt public order and harm public interest.19 In another case, the Public Prosecution directed the same accusation to the defendant because he used his personal account on Facebook to write one of the posts and publicly share private photos of the victim while defaming him.20
These examples reflect the significant expansion by the Public Prosecution in directing the accusation of committing the crime of intentional disturbance based on a behavior or act committed publicly, which constitutes an unjustifiable abuse of its authority in directing accusations and a misinterpretation of the provisions of Article 76 of the Telecommunications Law.
The Judiciary’s Position on the Application of the Crime of Intentional Disturbance through Communication Means
Firstly, the courts have expanded their interpretation of disturbance and surpassed the purpose of criminalization.
Judicial applications have neglected to interpret the crime of intentionally disturbing others using communication means, provided that non-publicity is a condition. The prosecution also overlooks this condition when making accusations. Egyptian courts, including criminal courts at various levels and the Court of Cassation, have focused on the nature of the means used to commit the crime, regardless of whether non-publicity is present.
Interpretation by Criminal Courts:
Both ordinary criminal courts and economic courts, each within their jurisdiction, have relied on one interpretation. The most common and widely used interpretation in convicting individuals is that “disturbance or annoyance is when one person uses communication devices to disturb or annoy the other party. The legislator criminalizes this act when it occurs through any communication device, whether it be a telephone, a computer device for receiving data and information, email, electronic messages, the internet, telecommunication, or other communication means. Any annoyance or disturbance that occurs through these devices constitutes a crime according to Article 76, paragraph two, of the Telecommunications Law. Anyone who sends messages via the internet or on a mobile phone that include annoyance or disturbance towards the recipient commits this crime, and it is up to the judge to determine whether the committed act constitutes annoyance or disturbance to the recipient. This is an objective matter that varies from one case to another.“21
Court judgments, especially those of the Economic Court of Cairo, have repeatedly convicted individuals of committing the crime of intentionally disturbing others using communication means based on the aforementioned interpretation. This reliance on the interpretation occurs despite the fact that the facts of these cases involve publicly disseminating information using communication means, and these facts do not fall under the legal model of the crime defined in Article 76 of the Telecommunications Law, as none of them were non-public.22
Interpretation by the Court of Cassation:
The Court of Cassation did not differ significantly from the criminal courts in overlooking the requirement of non-publicity necessary for the commission of the crime of intentional disturbance using communication means. The Court of Cassation expanded its interpretation extensively, making it encompass all communication means, including means that are not assumed to be used non-publicly, such as publishing on social media platforms like Facebook and Twitter.
This expansion is evident in several judgments of the Court of Cassation. For example, the court decided in one of its recent judgments that
“disturbance, according to Article 76 of Law No. 10 of 2003 on Telecommunications Regulation, is not limited to insult and defamation, which are mentioned in Article 308 of the Penal Code, but it extends to any statement or act intentionally performed by the perpetrator that causes distress to the victim, regardless of the type of communication devices used or the means employed. The court expressed its confidence in the statements of the victim, as well as the evidence provided by the police investigation report and the technical examination report conducted by the Technical Assistance Department at the Computer Crimes and Information Networks Investigations Administration. These confirmed the accused’s intention to harass the victim through the misuse of communication devices owned by him, by creating two Facebook accounts and engaging in posts that defamed and harmed her reputation. The elements of the crime, which the appellant was convicted of, are thus established, and the complaint regarding the inadequacy of the conviction is dismissed.“23
The Court of Cassation did not limit itself to this extent but extended its expansion in interpreting the text of Article 166 bis of the Penal Code, which was repealed by the issuance of the Telecommunications Regulation Law, to include all means of communication, both public and private, including the Internet. This interpretation comes despite the text of the article being limited to “telecommunication devices only” and does not extend to other means of communication.
This expansion is evident in a recent ruling issued by the Court of Cassation regarding this crime, in which the court affirmed the conviction of defendants for publishing posts on Facebook that caused annoyance to the victims. The Court of Cassation decided in this judgment that:
“The disturbance, according to the text of Article 166 bis of the Penal Code, is not limited to defamation and slander, as the legislator has addressed them in Article 308 bis, but it extends to any statement or intentional act that causes distress to the citizen. It was clear from reading the primary judgment, which supported its reasons and was supplemented by the appealed judgment, that the court of first instance was satisfied that the appellants had directed insulting expressions and words through the World Wide Web – the Internet – which were offensive and derogatory statements that violate public decency and were broadcast on social networking sites – Facebook – which was available for their dissemination, with the intention of tarnishing the reputation of the plaintiffs of civil rights, and these offensive considerations in themselves disturb any person and cause distress to any individual. As the appellants intentionally committed such acts and their intention was directed towards annoying the aforementioned individuals with those statements and hurtful words, this fulfills the elements of the two crimes subject to the lawsuit, and what the appellants claim in this regard is unacceptable.“24
The crisis related to the continuous issuance of multiple legislations aimed at expanding the scope of criminalization concerning the use of telecommunication means is escalating. In addition to the excessive precautionary measures taken by law enforcement agencies in utilizing these laws indiscriminately in any charge related to digital publishing.
This leads to further restrictions on users’ right to freely express their opinions. Moreover, the continued enforcement of laws that seek to criminalize a single act or behavior with multiple crimes undermines the principle of equality among individuals, as the punishment varies depending on the applied law for the same incident.
Generally, there is an urgent need for legislative revision of the regulations governing the telecommunications sector and the rationalization of excessive legislation imposing punitive laws regarding the behavior of users of various communication means.
1 Added by Law No. 97 of 1955 – Egyptian Facts – No. 18 bis – promulgated on March 3, 1955
2 Official Gazette – No. 5 bis (a) – 4 March 2003.
3 Added by Law No. 97 of 1955 – Egyptian Facts – No. 18 bis – issued on March 3, 1955.
4 Article 1 of the Communications Regulation Act No. 10 of 2003 stipulates that: “The application of the provisions of this Act shall mean the following terms: 1-….2- …. 3. Communication: Any means of sending or receiving symbols, signals, messages, writings, images or sounds, whatever their nature and whether wired or wireless.
5 Cassation Appeal No. 9925 of 5 – Misdemeanours of cassation – 2,016/09/24 hearing
6 Appeal in cassation No. 25064 of 59 BC – Session 1/1/1995 – Technical Office 46 – Part 1 – S1 –
7 Appeal against cassation No. 2284 of 89 – economic misdemeanours – at the 2 ٠٢٠/٠٦/١٠ hearing, and appeal against cassation No. 11456 of 90 – cassation misdemeanors – at the 2,021/09/11 hearing.
8 Explanation of the provisions and principles of the communications laws of the consultant Dr ./Omar Al-Sharif first edition 2008 p. 124.
9 Appeal in cassation No. 11,505 of 88 BC – Criminal Chambers – Session 2 02/11/2019, Appeal No. 10004 of 58 BC – Criminal Chambers – Session 2 19/05/2019, Appeal No. 1627 of 14 BC – Criminal Chambers – Session 1 06/03/2019
10 Explanation of the provisions and principles of the communications laws of the consultant Dr.\ Omar Al-Sharif first edition 2008 p. 124.
11 Appeal in cassation No. 2205 of 89 – Criminal Chambers – 2,020/06/01 hearing.
12 Article 18 bis of the Code of Criminal Procedure, which is replaced by Act No. 74 of 2007, stipulates that: “An accused person may reconcile offences as well as offences that are not punishable by a fine or are punishable by a penalty of up to six months’ imprisonment. The editor of the record or the Public Prosecutor’s Office shall, as the case may be, offer reconciliation to the accused or his agent and this shall be confirmed in the record. Before initiating criminal proceedings, an accused person wishing to reconcile shall pay an amount equivalent to one third of the maximum fine for the offence, which shall be paid to the court treasury or the Public Prosecutor’s Office or to a licensee from the Minister of Justice. The accused’s right to reconcile by bringing criminal proceedings before the competent court shall not be waived if two thirds of the maximum fine prescribed for the offence or the minimum value prescribed thereof, whichever is greater, is paid before a judgement is handed down. The criminal case provides for the payment of the amount of conciliation, which has no effect on the civil action.
13 Cassation Appeal No. 22531 of 88 RS – 5-2-2019 Hearing – Legal Principles Established by the Court of Cassation for Communications Offences – p. 61
14 Appeal in cassation No. 22201 of 88 BC – Session 27-2-2019 – Legal principles established by the Court of Cassation for Communications Offences – p. 61
15 Case No. 141 of 2022, Cairo Economic Offence, in which the Public Prosecutor’s Office assigned the accused to commit several offences, including the offences of sending numerous e-mails extensively to the victim without his consent; Intentionally disturbing him by misusing telecommunications devices and requesting that he be tried for punitive offences, including article 25 of the Law on Combating IT Offences and article 76 of the Law on the Regulation of Communications, Referring him for criminal trial, Case No. 2260 of 2021 Cairo Economic Misdemeanor, The Public Prosecutor’s Office assigned the accused to commit several offences, including the offences of sending numerous e-mails extensively to the victim without his consent. offences “, intentionally inconveniencing the victim by misusing telecommunications devices, requesting that he be tried for punitive offences, including the text of article 25 of the Law on Combating Information Technology Offences and article 76 of the Law on the Regulation of Communications, and referring him to criminal prosecution.
16 Case No. 1592 of 2021 Cairo Economic Misdemeanors.
17 Case No. 433 of 2022, Cairo Economic Misdemeanor.
18 Judgement of 19-4-2022 in Case No. 525 of 2022 Cairo Economic Misdemeanor conviction of the accused for, inter alia, intentionally disturbing the victim by misusing communications devices, For using one of Facebook’s personal accounts in impersonating the victim’s wife and placing a photo of her with defamation phrases and judgement of 28-2-2022 in case No. 73 of 2022, Cairo Economic Misdemeanour, The court found the accused guilty of, inter alia, intentionally disturbing the victim by misusing communications devices. for use by a Facebook personal account in posting a leaflet containing insulting and defamatory words to the victim.
19 Article 95 of the Code of Criminal Procedure, supplemented by Law No. 98 of 1955 – Egyptian Facts – No. 18 bis Unusual promulgated on 3 March 1955.
20 Article 18 bis (a) of the Code of Criminal Procedure, which is replaced by Act No. 145 of 2006, stipulates that: “The victim, his or her special agent, heirs or special agent, shall prove peace with the accused before the Public Prosecutor’s Office or the court, as the case may be, in the event of misdemeanours and offences under articles 238 (act. 1 and 2). 241 (first and second act) and 242 (first, second and third act) 244 (first and second act), 265, 321 bis, 333, 323 bis, 323 bis, 324 bis, 336, 340, 341, 342, 354, 358, 360 and 361 (first and second act) 369, 370, 371, 373 and 377 (section 9) 378 sections (6, 7, 9) and 379 (section 4) of the Penal Code and in other cases provided by law. The accused or his agent may prove the conciliation referred to in the preceding paragraph. In any case in the proceedings, and after the judgement becomes final, it may be reconciled. The magistrate shall terminate criminal proceedings, even if they are brought by direct prosecution. The Public Prosecutor ‘
21 Cassation Appeal No. 22531 of 88 RS – 5-2-2019 Hearing – Legal Principles Established by the Court of Cassation for Communications Offences – p. 61
22 Mr. Mohammed Kamal Abdelaziz – Civil legalization in the light of the judiciary and jurisprudence – Sources of commitment, 3, 2003, p. 193 ff.
23 Act No. 146 of 2019 amending certain provisions of the Economic Courts Act promulgated by Act No. 120 of 2008, Official Gazette, No. 31 bis (f) of 7-8-2019.
24 Case No. 141 of 2022 concerning economic misdemeanours in Cairo, the Public Prosecutor’s Office assigned the accused to commit an offence that deliberately disturbed the use of telecommunications equipment. The Court of Economic Cairo sentenced the accused to one year’s imprisonment and a fine of 5,000 pounds. Cairo Economic Offences No. 72 of 2022, the Public Prosecutor’s Office assigned the accused to commit an offence of intentionally disturbing the misuse of telecommunications equipment and requested that he be tried for crimes punishable by, inter alia, the provisions of article 166 bis of the Penal Code.