Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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The Court of Administrative Judiciary in Egypt’s Chamber of Economical and Investment Disputes (7th Chamber) issued a ruling rejecting the plaintiff’s demand to overturn the decision to not withdraw the license granted to Al-Youm Al-Sabea Website (موقع اليوم السابع). The plaintiff had sought the cancellation of the website’s license and the cutting off of its connection after the website published defamatory statements about him. The decision noted that although what had been published on the website against the plaintiff constitutes a crime of insult and defamation, withdrawing the license of the website or shutting it down would clearly contradict article 71 of the Constitution which prohibits any censorship or suspension of Egyptian media, and that censorship is not an appropriate measure to address defamation in the media.
On September 11, 2013, Mortada Mansour, a controversial Egyptian politician and public figure, brought an application before the Chamber of the Economical and Investment Disputes (7th Chamber) within the Court of Administrative Judiciary, seeking the suspension of Al-Youm Al-Sabea website’s media license. Mansour argued that the website had turned into a platform that publishes defamatory, insulting, obscene, and slanderous political satire articles against him, and so had repeatedly breached the terms of the license it had been granted – which, Mansour submitted, did not extend to publishing political articles. He referred to quotes from the website, such as “Mourtada Mansour is the key promoter of the slogan that Life is nothing but a huge Bathroom” and “the common thing between Mourtada and the Islamists is that they both imagine that life is nothing but a huge bathroom as all their stories focus on sex and masturbation”. Mansour argued that the individuals responsible for the website destroyed the media content presented to the public.
Mansour brought the application against the Minster of Investment; the Minister of Media; the Minister of Communication; the Head of the General Authority for Investment and Free Zones; the Chairman of the Board of Directors of the Media Free Zone; the Head of the National Telecommunications Regulatory Authority the owners and the Chief Editor of the Website; the Executive Chief Editor; and the Managing Editor of the Website. Mansour, through an urgent application, sought to suspend two decisions issued by the National Telecommunications Regulatory Authority (NTRA); the General Authority for Investment and Free Zones (GAFI); the Minister of Investment; the Minister of Communications and Information Technology; the Minister of Media; and the Chairman of the Board of Directors of the Media Free Zone. The decisions were to refuse to cancel the permission granted to the website and to not cut off the connection to the website. Mansour – who had first applied to these authorities for the license cancellation and connection suspension – argued that the decisions contradicted the media ethics code and the organized media broadcasting regulation.
The Egyptian Constitution provides protection to the right to freedom of expression and of the media. Article 65 states that “Freedom of thought and opinion is guaranteed. Everyone has the right to express their opinion through speech, writing, imagery, or other means of expression and publication”. Article 67 states that “1) Freedom of artistic and literary creation is guaranteed; 2) “No lawsuits may be initiated or filed to suspend or confiscate any artistic, literary, or intellectual work, or against their creators except through the public prosecution. No punishments of custodial sanction may be imposed for crimes committed because of the public nature of the artistic, literal or intellectual product.”. Article 70 states that “Freedom of press and printing, along with paper, visual, audio and digital distribution is guaranteed. Egyptians — whether natural or legal persons, public or private — have the right to own and issue newspapers and establish visual, audio and digital media outlets.” Article 71 states that “It is prohibited to censor, confiscate, suspend or shut down Egyptian newspapers and media outlets in any way. Exception may be made for limited censorship in time of war or general mobilization.”
There are also a number of other relevant provisions in the Constitution. Article 51 states “Dignity is a right for every person that may not be infringed upon. The state shall respect, guarantee and protect it.”. Article 57 states that “Every person has the right to a secure life. The state shall provide security and reassurance for citizens, and all those residing within its territory.” Article 93 confirms that “The state is committed to the agreements, covenants, and international conventions of human rights that were ratified by Egypt. They have the force of law after publication in accordance with the specified circumstances.” Article 99 states that “Any assault on the personal freedoms or sanctity of the life of citizens, along with other general rights and freedoms guaranteed by the Constitution and the law, is a crime with no statute of limitations for both civil and criminal proceedings. The injured party may file a criminal suit directly.”
The Court referred the case to the Commissioners’ department to prepare a legal opinion, which recommended that the case should be heard, based on procedure, but that its merits should be rejected. The Commissioners’ department is a department in the State Council which, as a prerequisite, has to examine all cases filed before administrative courts and provide a legal opinion before the court judgment can be issued.
The ruling was issued by the Chamber of the Economical and Investment Disputes (7th Chamber) within the Court of Administrative Judiciary recorded under No. (73228), judicial year 67. The central issue for the Court’s determination was whether the respective authorities should have cancelled the website’s license or cut off its connection or whether the Egyptian Constitution protected the website’s right to freedom of the media.
The NTRA and the GAFI asked the Court to dismiss the whole case for the lack of an administrative decision, while the other defendants requested the dismissal of the case for the lack of legal capacity.
The Court held that the decision to not cancel the license granted to the website could be challenged in court, but that the decision to refrain from cutting off the connection and to not ban it from broadcasting was not capable of challenge because it was not an administrative decision. The Court noted that the NTRA did not have the capacity to cut off the website’s connection because the broadcast takes place from different locations with different IP addresses, such as Hong Kong, the UK, and Costa Rica: only the courts in those locations could order the website’s broadcast to be shutdown.
The Court set out the international and domestic legal framework relevant to the case, and referred to article 19 of the International Covenant on Civil and Political Rights and to a number of articles of the 2014 Egyptian Constitution. The Court noted that the protected rights to dignity and privacy (protected by articles 51, 57 and 59) and of artistic expression and creativity and freedom of the press (protected by articles 67, 70 and 71) conflict, and that the judiciary must ensure that when an administrative sanction is imposed, a balance is struck between the ability of the media to act as a window to free speech on one hand and preventing the abuse of those media channels by defaming or offending people or violating their privacy on the other. The Court emphasized that freedom of the press is closely related to the right to criticize and to the free flow of information, and that press freedom applies to all sorts of press and media, including digital media, and the opinions generated out of the interaction with it. The Court underlined that press freedom must not be restricted either through prior restraints or subsequent suppressive punishment. Additionally, the Court stated clearly that the right to freedom of expression through online platforms is closely linked to the right to connectivity guaranteed under article 11 of the 1789 French Declaration of the Rights of the Man and of the Citizen, article 19 of the Universal Declaration of Human Rights which disposes that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”, as well as the UN General Assembly Resolution No 59 of the year 1946 which states “freedom of information is a fundamental human right and is the touchstone of all the freedoms”.
The Court held that the articles published on the website attacking Mansour did indeed ignore the well-established media standards and ethics by including inappropriate expressions and insults that deliberately targeted Mansour’s persona in an attempt to undermine and demean him within his work, life and society. It found that this undoubtedly goes beyond the limits of constructive criticism and freedom of expression. However, the Court held that cancelling licenses or shutting down media outlets should not be the way to respond to acts of insult and defamation as doing so would severely undermine media plurality and would contradict article 71 of the Constitution, which prohibits all forms of censorship on, confiscation, suspension or shutting down of Egyptian newspapers and media.
In its reasoning, the Court referred to the Supreme Administrative Court’s decision number 10171/ which held that a distinction should be made between the violation of the individual rights of persons and the encroachment on society and its security and safety, even though both are discouraged by religions, the Constitution and the law. This is mainly because a claim related to the infringement of personal rights can be raised through criminal or civil litigation, or both (as alluded to by article 76 of the Telecommunication Regulation Law), whereas in the case of prejudice to the security and safety of society the only way to prevent it is by shutting the source of the danger.
Having considered the circumstances of the case, the relevant laws and precedents, the Court held that the impugned administrative decision met the correct application of the law and that Mansour’s demands had no legal basis. A claim that an individual’s personal rights can only be made through civil or criminal litigation, and so Mansour’s use of the administrative courts was inappropriate. In addition, Mansour’s application was in clear contradiction of article 71 of the Constitution which prohibits any form of suspension or shutting down of an Egyptian media outlet. Accordingly, the Court rejected Mansour’s application to overturn the decision to not withdraw the website’s license.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In refusing to recognize that exceeding the right to freedom of expression through insulting an individual could be a justification to restrict the freedom of the press by censoring, confiscating, suspending or shutting down media outlets, the Court upheld the protection of media plurality in Egypt. The Court emphasized that censoring or shutting down a media outlet is not an appropriate response to defamation or other demeaning or insulting comments from that outlet. This judgment also highlighted digital rights, in particular the right to connectivity, which is an important human right in today’s digital era.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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