Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
This case is available in additional languages: View in: العربية
The Nablus Court of First Instance (Appellate Court) unanimously delivered a decision in the case where the Applicant faced charges of slander against the Palestinian Authority under Article 45 of the Decree Law on Cybercrimes. The Applicant contended that the Magistrate’s Court committed errors in disregarding legal arguments and invalid arrest and investigation procedures. The Appellate Court, reviewing the evidence, found that the statements made by the Applicant were private messages sent via WhatsApp during a conversation with an individual named Majdouline. Emphasizing the lack of publicity required by the Penal Code, the Court declared the Applicant innocent of the charge, annulling the appealed judgment and acquitting the Applicant due to the non-punishable nature of the act.
The Applicant was charged with slander against the Palestinian Authority under Article 45 of the Decree Law (Cyber Crime Law). According to the prosecution, the Applicant sent a text message via WhatsApp, to a girl named Majdouline, and he replied “Their (Palestinian Security Services) sister is on the sister of their devices with my legs, small people who are mutilated.”
During the conversation, the Applicant further said “Screw them and their Security services. Such thugs, disrespectful people. Anyone who practices bullying against any protestor in the street transgresses the law and prevents any movement within the framework of the law with thugs and intimidation, we are against him, these people present themselves as Security men in civilian clothes, and they practice the law with thuggery, and they prevent anyone from expressing his opinion, and when I said disrespectful thug people, because it was a conversation between me and my friend.”
The Nablus Magistrate Court found the Applicant guilty under Article 45 of the Decree Law in terms of Article 191 of the Penal Code and sentenced him to imprisonment for three months obliging him to pay an amount of 100 JD (approximately 141 USD) for trial expenses. The Applicant filed an Appeal before the Nablus Court of First Instance (Appellate Court). It is imperative to note that the Applicant’s prosecution continued even after his release by a decision of Nablus Magistrate Court, where he was arrested by the Israeli occupation forces for 38 days, and he was interrogated about details related to his statements and the investigation that took place with him at the Preventive Security Service and the Public Prosecution.
Justice Firas Abdel-Ghani, Justice Muhammad Jaradat, and Justice Majd Annab delivered a unanimous decision.
The Applicant contended that the Magistrate’s Court had made several errors in its decision, particularly in disregarding legal arguments raised by the defense attorney. The Applicant contended that the arrest at the Preventive Security Service lacked a legal arrest warrant and search warrant, and the Court ignored the defense’s challenge to these procedures. The Applicant emphasized the invalidity of the investigation and arrest procedures, which, if accepted, would have rendered statements made during interrogation inadmissible.
Additionally, the Applicant asserted that the Court had erred in convicting based on an indictment that exceeded its limits. According to the Applicant, the indictment did not support the charge of slander against the Palestinian Authority, and the Court failed to recognize that the accusations were aimed at suppressing press freedoms. The Applicant further argued that the Court had not properly assessed the evidence related to the slander charge, emphasizing the lack of proof for the material elements required by the law.
Moreover, the Applicant criticized the Preventive Security Service’s actions, claiming that they had interrogated the Applicant without proper warrants and that the Public Prosecution had provided legal cover for these transgressions. The Applicant alleged that the Court did not exercise proper authority and control over this matter during the final investigation. Lastly, the Applicant contended that the Court had misapplied the relevant legal provisions and failed to consider the timing of the alleged offenses, arguing that they had occurred before the enactment of specific cybercrime laws. The Applicant requested the Court to dismiss the case based on the invalidity of arrest and investigation procedures or declare innocence due to the lack of evidence and a legal basis for the charges.
Upon reviewing the case and the evidence about the charge of slander against the public authority, the appellate Court found that the incident in question involved a private message sent by the Applicant via WhatsApp during a conversation with an individual named Majdouline. The Applicant’s remarks criticized the Palestinian security services and were made within the context of a private discussion. The Court noted that the statements were supported by the Applicant’s interrogation minutes on September 16, 2022, where he explained his views on those engaging in thuggery while suppressing lawful protests.
Applying the relevant legal provisions, the Court concluded that the crime of slander, as defined in Article 188/1 of the Penal Code No. 16 of 1960, requires the assignment of a specific matter to a person in a manner that undermines their honor and dignity or exposes them to public contempt. The Court highlighted that the legislator, in Article 191 of the same Penal Code, specified punishment for slander directed at the National Assembly, official bodies, Courts, public administrations, the military, or any employee.
Crucially, the Court determined that the Applicant’s messages sent via WhatsApp were private and had not been published or disseminated among the public, negating the element of publicity required by the Penal Code. Consequently, the Court declared the Applicant innocent of the charge of slander against the public authority, contrary to Article 191 of the Penal Code and Article 45 of Decree-Law No. 10 of 2018 on cybercrimes. Following Article 336 of the Code of Criminal Procedure, the Court accepted the appeal, annulled the appealed judgment, and acquitted the Applicant due to the lack of criminalization in the act, rendering it non-punishable.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling affirmed and expanded the freedom of expression by emphasizing the private nature of the messages sent by the appellant via WhatsApp. The Court recognized that the statements critical of the Palestinian security services were made within the context of a private conversation, and the lack of public dissemination negated the element of publicity required for the charge of slander. By declaring the Appellant innocent and citing the absence of criminalization in the act, the Court’s ruling seems to protect the freedom of expression in private conversations, reinforcing the notion that private communications should be protected from legal consequences that might impede open dialogue and the exchange of opinions.
The Court failed to consider the content of the speech, and recognize it as political expression on a matter of public interest which is given strong protections under international law. Further, General comment 34 states that “States parties should not prohibit criticism of institutions, such as the army or the administration.”
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Article 191 of the Penal Code provides criminal penalties of up to two years in prison for “slandering” government officials.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.
