Position Paper Issued Following Workshop on Media Freedoms in Light of PCHR’s Legal Review of Electronic Crimes Law

19 September 2017

The Palestinian Center for Human Rights (PCHR) organized a workshop on media freedoms in light of PCHR’s legal review of the Electronic Crimes Law.  The workshop titled as “Legal Review of 2017 Electronic Crimes Law in light of International Standards on Freedom of Expression” was attended by Members of the Palestinian Legislative Council (PLC), politicians, journalists, jurists, academics, and representatives of civil society organizations. The workshop concluded with a number of recommendations; most prominent of which emphasized on immediate suspension of this law as a prelude to abolish it.

Mohammed Abu Hashem, author of the legal review, tackled 8 major flaws in the Electronic Crimes Law.  Those flaws were as follows: not stipulating respect for the freedom of opinion and expression; widening scope of criminalization in law; violating the “mere conduit principle” and so threatening the freedom of expression and political participation; fragile legal formulations and omission of illegality and intention to harm; use of ambiguous terms that are open to interpretations; exaggerating penalties, such as hard labor for life and fines of JD10,000, for the crimes stipulated within this law; punishing for mere intent without requiring the occurrence of criminal act; assuming those responsible serious criminal liabilities; and not providing for the limitation periods to initiate a lawsuit against electronic expression crimes. Abu Hashem concluded with the 22 recommendations in the Review that implicitly underscores to totally abolish the law and replace it with another complying with the international standards.

In his intervention, Jamil Sarhan, Deputy Director of the Independent Commission for Human Rights (ICHR) in the Gaza Strip, emphasized that the basic criterion which drawing punitive laws relative to freedom of expression should be based on is the Palestinian Basic Law (PBL) that guarantees the freedom of expression in addition to a general three-part test for assessing restrictions on freedom of expression.  The first part of this test stipulates that any restriction must be prescribed by law that is narrowly and precisely draw and this is not available in the Electronic Crimes Law issued by the Palestinian President as a presidential decree not in a case of necessity according to Article (43) of the PBL which the President referred to in the issuance.  Sarhan stressed that the restrictions should be indispensable on the ground of protecting a legitimate reputation interest and be necessary in a democratic society that respects rights and freedoms.  The Electronic Crimes Law also lacks these two conditions as emphasized by PCHR’s Legal Review.

Moreover, the attendees in the workshop addressed how serious it is to enter into force this law, which affects public freedoms and is of the Palestinian division results. the attendees also pointed out to further seriousness when applying this law due to the Judiciary’s weak knowledge of journalistic work and its requirements. The attendees also stressed that joint work is important to abolish the law, expressing their support for PCHR’s campaign to abolish this law.  Furthermore, the attendees expressed their concerns over the possibility of maintaining this law and its impact on the future of the journalistic freedoms and democratic transformation in Palestine.

The workshop came out with the following results:

1. The Electronic Crimes Law violates the fundamental human rights, particularly the freedom of expression, and undermines any chance of democratic transformation in Palestine.
2. The Palestinian Legislator has chosen the worst Arab legal texts and added worst ideas to come out with such improper law.
3. The Palestinian Authority has violated its international obligations, particularly under the International Covenant on Civil and Political Rights, particularly Article 19.
4. Drawing this law and rushing to adopt it demonstrate a premeditated intention to suppress rights and freedoms and to impair the journalistic work, and this was very clear in the fragile formulations.
5. The Palestinian society perhaps needs a law to protect it from the electronic crimes but not to protect the authority from the society. Thus, if the Palestinian President wanted to use his exceptional powers, he should have used them for the citizen’s interest.
6. The Judiciary and Public Prosecution misapply laws to undermine freedoms, particularly journalistic freedoms.

Recommendations:

1. The Electronic Crimes Law should be suspended until it is abolished and should be replaced with a law that respects the PA’s binding international standards.
2. Networking and cooperation between the civil society organizations is very necessary to pressurize the decision-makers and Palestinian President to abolish this law.
3. Any incoming reconciliation agreement should prioritize abolishment of these laws restricting freedoms and rights; most prominent of which is the Electronic Crimes Law.
4. Working on organizing the electronic media work in a way that widens the scope of freedoms.
5. The Prosecution and Judges should be trained on applying the law relevant to the freedom of opinion and expression and the relevant international standards in order to avoid the misapplication.

This workshop was covered by many local channels and widely broadcasted to the audience.  It should be mentioned that this workshop and review is part of a campaign organized within PCHR’s frequent work to support the journalistic freedom.  This campaign is part of a project funded by the Canadian Government and carried out by PCHR to support journalists and media activists’ freedom.

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