Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
Irwin toy ltd. v. Quebec
Closed Contracts Expression
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An Egyptian court sentenced three Al-Jazeera journalists to seven to ten years’ imprisonment with hard labor for conducting activities characterized as “undermin[ing] national security.” The journalists argued they were just reporting the news. The court refused to discuss any of the defense’s arguments; instead it convicted the journalists under Article 86 for causing strife and supporting the Muslim Brotherhood. All three journalists have since been released.
Initially, three Al-Jazeera journalists were arrested by the Egyptian police for conducting activities characterized as undermining national security. All the activities under scrutiny in this case were merely reporting and journalism activities. Later, the prosecution expanded to include a total of 20 defendants in the same case. The charges (much of which is not grounded on any particular provisions of Egyptian law) are based on reports and videos that were prepared by Al-Jazeera staff in Egypt, documenting the government’s attacks on Muslim Brotherhood supporters.
At the case’s final hearing, the judges hearing the case, sitting on a three-judge panel at a criminal court near the capital of Cairo, sentenced the defendants to seven to ten years imprisonment with hard labor. The original text of the decision was released to the public a month after sentencing. The text of the decision shows that, in reaching their decision, the judges relied heavily on the confiscated material and the police testimony as direct evidence of guilt, without much explanation of the legal reasoning or the specific crimes that warrant such harsh sentencing.
In early February 2015, Peter Greste, one of the defendants, was released and deported from Egypt. Later the same month, on February 12, another co-defendant, Mohamed Fahmi, was released and deported after having relinquished his Egyptian citizenship as part of his plea agreement. A third defendant, Baher Mohamed, was also released on the same day.
The decision is full of sermonizing regarding the journalists’ undermining of national security and unity, in addition to their lack of patriotism. It includes very little, if any, legal reasoning. The only legal charges (mentioned briefly in the decision) are several criminal charges under Article 86 of Egyptian Penal Law. This particular provision criminalizes unlawful association and spreading false news. The law specifically prohibits lending any support to “unlawful organizations or associations not permitted by the State.”
The Court’s reasoning here relies on the fact that the confiscated materials show interviews and footage of the Muslim Brotherhood’s struggle in post-Morsi Egypt. The Court reasoned that this type of reporting can cause civil strife and is also supportive of the Muslim Brotherhood–which is currently a banned organization. The journalists, therefore, seem to be prosecuted under Article 86 for lending support to the Muslim Brotherhood.
The Court spends much time on listing police testimony and discussing the confiscated items. The confiscated items are several hard drives, computer files, and media equipment. Almost none of the confiscated materials is contraband or otherwise criminal in nature. However, the Court seems to equate reporting on terrorism with support of terrorism.
Moreover, under Egypt’s Criminal Procedures Law, the judge is the final arbiter of credibility and can exercise discretion in assessing the weight and the authenticity of any piece of evidence offered in Court. Here, the judges use their discretion to believe all the prosecution’s witnesses and to decide that the weight of the confiscated materials is significant proof of the defendant’s guilt. Meanwhile, the Court disregarded the defense’s attempts to show doubt in the police testimony and refused to discuss any of the defense’s arguments.
Much like his sentence, Peter Greste’s subsequent release was not based on any established laws. Rather, it was a clear sign of the Egyptian Military regime succumbing to external pressure from other Arab states and other international forces. By contrast, the other two defendants who were later released, Mohamed Fahmi and Baher Mohamed, were asked to denounce their Egyptian citizenship in exchange for their release.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision is definitely problematic and repressive from a freedom of expression perspective. The problems with the decision here are two-fold:
1. The law. The Court relies heavily on outdated laws that include vague language and it does not attempt to provide a modern or reasonable interpretation of the laws. Under Article 86 of the Egyptian Penal Law, it is a crime to aid an unlawful organization. This is ostensibly the charge that landed the journalists in this case in jail with long prison sentences. However, the law does not provide a definition of what kind of organization or movement can be deemed unlawful. Moreover, this law was never used in the past to prosecute journalists reporting on organizations or movements. The decision is therefore repressive because it expands prosecution of “unlawful” organizations to journalists that report on them, not just members of said organizations.
2. The judicial system. This decision shows a few problems with the current Egyptian Judiciary in dealing with freedom of expression issues. The problems include the judiciary’s lack of independence from the Executive Branch and judicial incompetence.
The Court here fails to interpret the law and provide meaningful reasoning in support of its decisions. It mentions, in passing, that Article 86 of the Penal Law is related to this case. The rest of the Court’s decision is merely a demonstration of the prosecution’s case with a tedious description of every piece of confiscated evidence and police testimony.
Furthermore, the Court fails to address the defense’s attack on witness credibility. The witness’s statements (some of which border on the absurd) are all taken at face value by the Court. Given the high profile of this case, this case raises serious questions as to Egypt’s judicial independence as the members of the judiciary seem to be in complete agreement with the prosecution with little regard to the defense’s case or to legal reasoning.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
This case vaguely references Article 86 in order to justify the charges against the defendants.
Case significance refers to how influential the case is and how its significance changes over time.
The decisions is arguably a threat to any journalist who chooses to report on any points of view with which the State disagrees. It shows an unprecedented expansion of prosecution of journalists and of viewpoint discrimination in Egyptian courts.
Let us know if you notice errors or if the case analysis needs revision.