Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
Closed Contracts Expression
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The Egyptian Supreme Administrative Court rejected an appeal by the Association for Freedom of Thought and Expression against a lower administrative court ruling which had blocked YouTube for one month. The Court referred to Egyptian and foreign jurisprudence which established that freedom of expression is not an absolute freedom, but can be subject to constraints to preserve the values and traditions of Egyptian society. The Court upheld the YouTube ban on the grounds that the state has a duty to preserve social peace and national security through the protection of religious beliefs. Further, the Court called on Parliament to “prohibit” and “criminalize” communications which could undermine religious unity.
In July 2012, a 14-minute video about the Prophet Muhammad, titled The Innocence of Muslims, appeared on YouTube. The film was uploaded at least twice under different titles, such as The Real Life of Muhammad and Muhammad Movie Trailer. Versions of the film dubbed in Arabic appeared in early September 2012. The film depicts the Prophet Muhammad as a homosexual, pedophile, fraud and philanderer. In Cairo, large protests against the film resulted in violence and clashes with police.
On September 12, 2012, a lawsuit was filed by lawyer Mohamed Hamid Salem before the Administrative Court, requesting to suspend the implementation of the negative decision by the National Telecommunications Regulatory Authority (NTRA). The negative decision in this instance meant that Salem had previously requested the NTRA to issue the blocking order and the NTRA abstained from implementing this action. The film was submitted to the Court, with Salem claiming it was offensive to Islam and constituted a threat to Egypt’s security. Salem requested that the website YouTube, and any links to the aforementioned video, be blocked and banned within the Republic of Egypt.
On February 9th, 2013, the Administrative Court accepted Salem’s claim that the film in question was offensive to Islam. The Court ruled in favour of Salem, suspended the implementation of the negative decision by the NTRA, and banned YouTube for one month. The Court deemed it necessary to block the entire YouTube site on the grounds that followers will copy and upload the impugned video under various titles and hence it was impossible to identify, remove or block the links selectively.
of The Court also accepted the intervention of the Association for Freedom Thought and Expression (AFTE) in the case; AFTE requested a stay of execution and appealed the decision to the Supreme Administrative Court. The Supreme Administrative Court received the case and sought a legal opinion from the Commission of Commissioners.
The opinion first acknowledged that there was no legal basis for the blocking under Egyptian law, however, a legal basis could be found in international treaties which allowed for legal restrictions to combat intolerance and eliminate discrimination. It further found that the NTRA had a duty to protect religious freedom from coercion and insult, which could ultimately threaten national security, as well as undermine the state and the pillars of Islam. The Commissioners, however, also noted “the harm of total closure of YouTube will prejudice the freedom of thought and expression in addition to prejudice services provided by YouTube that serve other areas, including dissemination of the peaceful teachings of Islam; also that closure of You Tube will result in major damage that may amount to losses of hundreds of millions of pounds, according to the administrative body”. On May 26, 2018, the Supreme Administrative Court accepted the opinion only in part. In its final decision, the Court rejected the appeal from AFTE and upheld the prior decision of the lower Administrative Court, banning YouTube for one month.
The first circuit of the Supreme Administrative Court delivered the final ruling.
The underlying issue for the Court was whether the appeal of the decision of the lower Administrative Court to ban YouTube for one month could be accepted substantively on the basis of freedom of expression.
The lower Administrative Court accepted the claim of Salem, the plaintiff, that the film in question was offensive to Islam. The Association for Freedom of Thought and Expression (AFTE) requested to intervene on the basis that it is a “civil society organization, concerned with freedom of thought and creativity.” [p. 5] The Court accepted the intervention of AFTE and their appeal in form. AFTE argued that the rights of communication and knowledge are expressions of basic human needs and constitute the basis for civil society. AFTE affirmed the individual’s right to different forms of communication, such as “human, economic, social, cultural and political, with those at home and abroad, through the medium of internet services.” [p. 5]
The Court “established its jurisdiction after reviewing the following texts and articles: The Egyptian Constitution, articles 10, 11, 38, 45, and 48; the International Covenant on Civil and Political Rights, articles 19 (1), (3), (4), (5), (13); and the Egyptian Telecommunications Regulatory law 10/2003, articles 21, 20, 29, 49, 50, 51, 55, and 67.” [p. 6]
On the basis of the articles referencing the Egyptian Constitution and the International Covenant on Civil and Political Rights, the Court found that freedom of expression is “not an absolute right and freedom, but can be constrained to preserve the values of society, traditions and historical heritage.” [p. 13] The Court argued that the Constitution allows for the “establishment of rules and regulations that … safeguard freedom of expression within its legitimate framework without infringing on others or society.” [p. 13] Freedom of expression cannot surpass the limits of public decency by attacking public peace and producing resentment from religious adherents. Accordingly, there must be a balance between these rights and freedoms. In this case, the Court found that there were disproportionate damages incurred from the exercise of freedom of expression. The Court found that the film in question “destroys the religious beliefs and moral values firmly established by the Islamic Republic of Egypt” and that the practice of freedom of expression in this case violates moral and religious values. [p. 7] Freedom of expression, in this instance, is not a valid basis for appeal because the contents of the film constitute a “violation of the supreme interests of the state and national security” and are “an assault on the provisions of the constitution and the law.” [p. 7]
Moreover, the Court found that the NTRA has the authority to regulate the means of communication, “without prejudice to the supreme interests of the state and its national security.” [p. 14] The Court found that the Telecommunication Regulations Law does not explicitly outline the legal basis upon which to block websites. However, within the field of administrative control lies the ability to “protect public security, public health and the public tranquility of citizens.” [p. 14] “This does not violate the right of the government and its agencies to block certain websites on the Internet which interfere with national security and the supreme interests of the state.” [p. 14]
In conclusion, the Court noted that “its role is not only a confrontation of the circumstances of the case but a deterrent, a warning to those sites and anyone who wishes to tamper with the religious and spiritual beliefs of the Egyptian people.” [p. 15] The Court called upon “the State and its House of Representatives to enact legislation prohibiting and criminalizing all broadcasts, whatever their means, which would undermine the religious beliefs and constants of the Egyptian people in order to preserve the social peace and unity of the national fabric.” [p. 16]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision constricts expression by calling on the Egyptian Parliament to enact laws that restrict expression deemed to undermine the religious unity of Egyptian society. The Court also broadly interpreted the ICCPR in order to justify the complete blocking of platforms based on legitimate restrictions provided for under Article 19 (3) b to protect national security, public order, public health or morals. In assessing the necessity of the ban, it weighed overwhelmingly in favor of protecting social cohesion over the right to freedom of expression. While the Court noted that rights must be balanced, it failed to consider the proportionality of the blocking of the platform which could jeopardize the fundamental right to freedom of expression and that less restrictive remedies were available. It further marked a diversion from previous rulings, such as a 2015 ruling which prevented the blocking of Facebook.
An analysis by AFTE posits that the ruling will establish precedent for cases still pending before the courts and for future blocking in the face of rising cases related to social networking sites. It will also legitimize executive and legislative attempts to restrict freedom of expression. AFTE found that the Court failed to clearly define national security, leaving it open to overly broad interpretations going forward and thus making it difficult for people to align their actions accordingly.
Amr Gharbiya, technical and human rights officer of the Egyptian Initiative for Personal Rights (EIPR), noted that the banning of YouTube for the month would significantly impact Egyptian companies, organizations, and individuals who publish on YouTube and receive revenue from advertising.
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