Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
Closed Mixed Outcome
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The Court of Appeals in Cairo – hearing the appeal of two women convicted and sentenced to imprisonment for violating “family principles and values upheld by Egyptian society” by posting “indecent” videos and images – acquitted one of the women and confirmed the conviction of the other but reduced her sentence to only a fine. The woman who had been arrested after posting videos on the social media platform, TikTok, encouraging other women to join a mobile application to meet, chat and build relationships with men in exchange for money was acquitted on the grounds that there was no intention to incite other women to commit debauchery. The Court held that the other woman who had been arrested for posting “indecent” photos and videos of her unclothed and dancing had been guilty of violating the values and principles of Egyptian society. This case was the first time these offences in the 2018 Cybercrime Act had been used since the law’s adoption
In early 2020, Hanin Hossam, a 20-year-old Egyptian student, shared a video on TikTok titled “Exploiting the body for money”. The video – which went viral – appeared to show Hossam inviting women to join her on a mobile application (app) called LIKEE in order to meet, chat and build relationships with men online. The video said the women could earn significant amounts of money through the app, and that the payments started at US$300 and could reach thousands of dollars.
The Public Prosecution’s Monitoring Unit received a number of complaints on its Facebook page about the video from social media users who complained that Hossam was taking advantage of the financial difficulties caused by the Covid-19 pandemic and was “inciting” young women to “debauchery and immorality” in exchange for money.
In April 2020, Egyptian authorities arrested Hossam and in May 2020, Mawada Al-Adham, another social media celebrity, was arrested for publicly posting “indecent” photos and videos of her on social media. The photographs of Al-Adham were published online after being leaked from one of her mobile phones which had been stolen in 2019. Hossam and Al-Adham were charged with violating articles 25 and 27 of the 2018 Cybercrime Law, 175 of 2018.
Article 25 states: “Anyone who infringes a family principle or value of the Egyptian society,…shall be punishable by imprisonment for no less than six months and a fine of no less than fifty thousand Egyptian Pounds and no more than one hundred thousand Egyptian Pounds, or by one of these two penalties.”
Article 27: “In cases other than those stipulated herein, anyone who creates, manages, uses a website or a private account on the information network for the purpose of committing or facilitating a punishable crime shall be punishable by imprisonment for no less than two years and a fine of no less than one hundred thousand Egyptian Pounds and no more than three hundred thousand Egyptian Pounds, or by one of these two penalties.”
Freedom of expression is protected in article 65 of the Egyptian Constitution which states that “[f]reedom of thought and opinion is guaranteed. All individuals have the right to express their opinion through speech, writing, imagery, or any other means of expression and publication”.
The case came before Cairo’s Misdemeanours Economic Court, which convicted Hossam and Al-Adham, and sentenced them to two years in prison and a fine of 300,000 Egyptian Pounds (approximately US$ 20,000 in 2020).
Hossam and Al-Adham argued that article 25 was unconstitutional as its offence of “violating the family principles and values upheld by Egyptian society” lacked clarity and specificity, and so infringed article 95 of the Constitution which requires that “crimes and penalties may only be based on the law,” and that this vagueness makes the provision a violation of the right to freedom of expression. In addition, Hossam argued that the video neither undermined public morals nor violated the law and Al-Adham that she had no intention to publish the images as they had been leaked from her stolen mobile phone. The prosecution maintained that Hossam and Al-Adham had violated Egyptian family values and principles and sought the implementation of article 7 of the Cybercrime Law which empowers the investigative authorities to block any website deemed to promote extremist ideas that violate national security or damages the Egyptian economy.
In interpreting article 25 and 27 – the first time the articles had been invoked – the Court explained that the criminal act takes place by “publishing content (via the internet, social media, email or any other electronic channel) that directly or indirectly calls or encourages dishonesty, parents disrespect, deviation from chastity or the obliteration of the value of science and religion using an article, visual/audio material, drawing, caricature…”. It added that the judge has a discretion to determine whether the conduct did violate Egyptian values and that the accused’s intention can be deduced from the facts, surrounding circumstances and evidence, and so there is no need to demonstrate actual knowledge and intention to commit the offences.
The Court assessed the evidence against Hossam and Al-Adham submitted by the prosecution and held that it was convincing and provided a coherent body of evidence which proved that Hossam and Al-Adham had violated Egyptian social values and family principles, and so were guilty of the offences under articles 25 and 27. The evidence included reports from the Attorney General’s office and the police which had stated that Hossam had taken advantage of the financial difficulties resulting from the Covid-19 pandemic to encourage girls to join her on the LIKEE app and the purpose of Hossam’s video was to seduce men and encourage women to engage in prostitution. The police report stated that Al-Adham’s social media account did belong to her. The Court stated that the evidence established beyond reasonable doubt that the two women had knowledge of these crimes and that they had the intention to commit them without regard to the damage it would cause to the conservative beliefs and religious heritage of Egyptian society. The Court characterized Hossam and Al-Adham’s actions as ones designed to spread unorthodox and deviant ideas under the guise of freedom and modernism.
Although it acknowledged that freedom of expression and creativity is a fundamental right which must be respected, the Court stressed that the right has limits and does not extend to obscene speech, indecency and immorality. The limits to the right serve to protect people’s honour, dignity and reputation. The Court stated that the Cybercrime Law was an example of a law which both protects freedom of creativity and prevents its exercise by those who abuse the right to cause harm to society, violate its values and principles and disregard customs and religious principles. The Court, however, refused to grant the prosecution’s request to implement article 7 of the Cybercrime Law on the grounds that the Court’s jurisdiction permitted it only to approve or amend the scope of an already imposed blocking order.
Both Hossam and Al-Adham appealed the decision to the Court of Appeals.
The matter was before Judges Amr Sabry, Mohamed Gheita and Amr Ali. The central issue for the Court’s determination was whether the convictions of Hossam and Al-Adham were correct.
Hossam and Al-Adham argued that article 25 did not sufficiently identify the conduct which was criminalized and so violated article 95 of the Constitution which stipulates that no criminal charges or penalties may be imposed without a basis in law.
Al-Adham sought an acquittal on the charges she faced on the grounds that the judgment of the first instance court had violated her rights to a defence and was based on article 27 which had not yet entered into force at the time she had created her social media account. She submitted that the elements of the crimes had not been proven and that she had no criminal intent. In addition, she submitted that the investigations had been insufficient and requested that a technical committee be appointed to determine the creator and manager of the social media account purporting to be hers. Al-Adham maintained that although she did shoot the videos in question and took the photos spread on her social media account, she did not commit the crime of violating the principles and family values by posting them.
Hossam also sought an acquittal on all the charges, and submitted that the lower court’s decision was not substantiated and lacked reasoning. She argued that the technical report examining the content of her account did not demonstrate that she had created and managed it to promote meetings between men and women which violated public morals.
The Court held that article 25 was constitutional, noting the reasoning of the first instance court as correct.
The Court dismissed Al-Adham’s argument that the lower court had incorrectly applied article 27, and noted that as the Cybercrime Law was enacted on August 14, 2018 and entered into force the following day it had been in force at the time of Al-Adham’s alleged commission of the crime (and so the date of the creation of the accounts was irrelevant). The Court overturned the lower Court’s conclusion regarding the photos showing Al-Adham in revealing clothes (swim suits) and wearing a transparent top showing her breasts, hence excluding the photos from the incriminating evidence, since the defendant denied posting the photos and there was no technical expertise linking posting them to Al-Adham. However, the Court ruled that the defendant admitted to posting the videos in which she appears to be dancing in revealing clothes, which the Court found to be contrary to the principles and family values of the Egyptian society, therefore convicting the defendant pursuant to art.304/2 of the Code of Criminal Procedure.
The Court also dismissed Al-Adham’s arguments that her right to a defence had been violated and that the elements of the offence (particularly the intention to commit the offence) had not been proven. It stated that the evidence before it contradicted Al-Adham’s arguments and that, nevertheless, it was not within its powers as an appellate court to re-examine decisions of these issues made justifiably by the lower court.
In respect of Hossam’s appeal, the Court emphasized the presumption of innocence and that this means that the burden of proof is on the prosecution. The Court held that the prosecution’s investigation did not prove that Hossam had intended anything more than to offer work through Likee and so did not intend to promote indecent behavior or encourage young women to commit debauchery. The Court relied on the videos and the words used by Hossam in those videos. The Court confirmed that the judicial position is that thoughts and ideas can be manifested in the form of words, writing or signs commonly understood in a certain way or in taking a stance which could not be interpreted in any way other than what the actor had intended. The Court stressed that any manifestation of thoughts and opinions requires a positive act (done either explicitly or implicitly): if there is an explicit expression of thought, the direct understandable meaning of the words will illustrate the intention of the speaker. The Court noted that there is then a rebuttable presumption that the apparent will of the speaker is demonstrated through his direct expression.
The Court referred to Hossam’s expression in the video inviting women to work as broadcasters for Likee, and concluded that none of her words implied her intention to invite them for debauchery. It noted that there were direct phrases in her videos warning her audience from committing any acts which exceed the limits of morals.
Accordingly, the Court rejected the prosecution’s evidence and the charge brought against Hossam that she promoted debauchery through her accounts and therefore concluded that if she had not committed debauchery, the charge that she created and managed the account for purposes which violated the values and principles of the Egyptian society is groundless. The Court acquitted Hossam on this charge.
Accordingly, the Court reversed the lower court’s decision in respect of Hossam, acquitting her and cancelling all sanctions imposed on her by the lower court. However, the Court upheld the lower court’s decision in respect of Al-Adham and confirmed her conviction on charges of violating the values and principles of Egyptian society. The Court amended the lower court’s sentence, cancelling Al-Adham’s prison term by taking into consideration her young age at the time of the commission of the acts, her eagerness for fame and willingness to collect money, but retained the fine of 300,000 Egyptian Pounds (approximately US$ 20,000 at the time of the first decision) and the other related sentences.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision takes a strict approach to the free expression of one’s thoughts. By upholding the conviction of Al-Adham and holding that images and videos in swimwear, among others, constitute a violation of the values and principles of Egyptian society, without identifying the scope of those values and principles or demonstrating the manner in which such posts harm the morals of the society, the Court seriously limits the exercise of the right to freedom of expression – even though it acquitted Hossam.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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