Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
On Appeal Contracts Expression
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The Cairo Economic Misdemeanor Court convicted two women for violating “family principles and values upheld by Egyptian society” by posting “indecent” videos and images and sentenced them to two years imprisonment and a fine of 300,000 EGP (approximately USD 20,000 in 2020). One woman was arrested after posting videos on the social media platform, TikTok, encouraging other women to join a mobile application to meet, chat to and build relationships with men in exchange for money. The other was arrested for posting “indecent” photos and videos of her unclothed and dancing. Both women were charged under the 2018 Cybercrime Law – the first time these offences had been used since the law’s adoption. The Court noted that, although freedom of expression is a fundamental right, it can be limited so as to protect society’s values and principles and held that the offences created by the Cybercrime Law seek to protect those values and are therefore constitutional.
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 of 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: “Posting content that violates the family principles and values upheld by Egyptian society may be punished by a minimum of six-months’ imprisonment and/or a fine of 50,000 to 100,000 Egyptian pounds (approximately US$3 000 to US$6 000 in 2020)”
Article 27 states: “A web administrator who creates, manages, or uses a website or a private account with the aim of committing or facilitating a crime can face imprisonment of not less than two years and/or a fine of between 100,000 and 300,000 Egyptian pounds (approximately US6 000 to US$25 000 in 2020).”
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”.
Cairo’s Misdemeanours Economic Court of Appeal delivered a unanimous decision. The central issue before the Court was whether Hossam’s conduct in posting a video online which invited women to chat to men in exchange for money and Al-Adham’s conduct in having “indecent” images of her posted online constituted a violation of Egyptian “family principles and values”. This was the first case in which articles 25 and 27 of the Cybercrime Act had been invoked.
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”. They submitted that this vagueness makes the provision a violation of the right to freedom of expression. In addition, Hossam argued that the video that had gone viral was incomplete and that its content neither undermined public morals nor violated the law. Al-Adham submitted that the videos were merely satirical and dancing videos and that she had no intention to publish the images as they had been leaked from her stolen mobile phone.
The public prosecution argued that Hossam and Al-Adham violated Egyptian family values and principles by inviting both adult and minor girls to use the platform LIKEE to virtually meet up with men for money and by sharing obscene personal videos and photos on social media. The prosecution had also sought the implementation of article 7 of the Cybercrime Law which grants the investigative authorities the power to block any website whenever they deem that the website’s content promotes extremist ideas that violate national security or damages the Egyptian economy.
In interpreting article 25 and 27, 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…”. The Court stressed that the determination of whether the accused’s conduct constitutes an assault on Egyptian family values lies with the discretionary power of the judge who must assess these actions in light of the well-established family principles in the Egyptian society. It added that the intention of an accused 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: a report of the Monitoring Unit at the Attorney General’s Office (MU); the police investigation report; the prosecution report; reports submitted by the National Telecommunications Regulatory Authority (NTRA) and the Egyptian Central Bank (ECB) on the prosecution’s request; and a witness statement. The MU report referred to the complaints made about Hossam’s video, and noted that Hossam was a social media “influencer” – with particular influence among the youth – which is why LIKEE approached her to take part in their campaign. The MU report stated that Hossam had taken advantage of the financial difficulties resulted from the Covid-19 pandemic to encourage girls to join her on the LIKEE app.
The police investigation report noted that the video posted by Hossam led to outrage in the Egyptian community as it incited women to appear in live broadcasts to chat and befriend men in exchange for money, in contravention of public morals. This report stated that, in addition to the LIKEE video, Hossam posted videos on TikTok in which she sang and danced on her own or with other women, conducted seductive conversations with men, and had audio of sexual intercourse. The report referred to investigations conducted by confidential sources which had concluded that the purpose of Hossam’s video was to seduce men and encourage women to engage in prostitution. The police report also stated that the online account which posted the indecent photos of Al-Adham belonged to her.
The prosecution report found that Hossam had admitted the content of the video but denied that its content violates the law. Al-Adham also admitted that she shot promotional videos for LIKEE and that the indecent photos at issue belonged to her, but that they had been published online from her stolen mobile phone. The report also stated that Mohamed Mahgoub, who worked as the director of photography at LIKEE, admitted to launching the hashtag #yourtheatre_yourbed on LIKEE, and that his phone contained a number of videos of girls, women, children and young men recording short videos of themselves.
The NTRA report indicated that an analysis of Al-Adham’s online accounts, mobile phone and laptop showed numerous videos of her dancing in public places wearing revealing clothes. The ECB report stated that Al-Adham had received two bank transfers from BIGO Technology – the owner of LIKEE – as well as a number of money transfers from several men living in different countries.
In his witness statement Hussein Al-Gohary, who had voluntarily gone to the Public Prosecution, indicated that he had been approached by LIKEE for a job which he refused because of LIKEE’s bad reputation. Al-Gohary had stated that women use the app in an obscene way and that the administration runs the app as if it were a place for prostitution.
The Court held that the evidence was convincing and that it 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 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.
Accordingly, the Court convicted Mossam 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). 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
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In holding that the nebulous concept of “societal values” outweighed the women’s right to freedom of expression, the Court failed to interrogate the Cybercrime law offences against the standards in the Egyptian Constitution or article 19 of the International Covenant on Civil and Political Rights which require that any restriction on freedom of expression be clear and precise. In addition, the Court did not challenge the legitimacy of the leaked photos used as evidence by the Public Prosecution or question the tactics of the Monitoring Unit which seeks to monitor and control the internet and online conduct – tactics which have a disproportionate effect on women in Egypt. This was particularly disappointing given this was the first case brought under the Cybercrime Law.
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