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Al-Haq: Failure to Ensure Civil Society’s Access to the Draft Law by Decree Amending the Law by Decree on Cybercrimes

Monday, 14 May 2018 11:59
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Alhaq Logo On 10 May 2018, Al-Haq reported its concerns (in Arabic) about the process of secrecy taking place in dealing with the Draft Law by Decree Amending the Law by Decree on Cybercrimes (hereinafter Draft Amendment to the Cybercrimes Decree Law) since it was approved by the Council of Ministers in its session held on 17 April 2018 without civil society participation. Al-Haq called for enabling civil society organizations to review and provide their comments on the Draft Amendment to the Cybercrimes Decree Law before publishing it in the Official Gazette. The comments are supposed to make the Cybercrimes Decree Law comply with the National Policy Agenda (Putting Citizens First), which was endorsed by the government for the years 2017-2022, and the legislative plan of the government, which emphasized transparency, full participation with, and openness to civil society in the legislative process and the development of public policies and decision makings. However the Law was published in the Gazette, without civil society engagement and review.

Al-Haq indicated that the third and last dialogue session held with the government between 19-22 November 2017 on the Draft Amendment to the Cybercrimes Decree Law did not succeed in aligning the Decree Law with international conventions and standards. During the meetings with the Committee on the Alignment of Legislation with International Conventions (hereinafter the Committee), which had been established by the Council of Ministers in 2017, Al-Haq presented comprehensive and controversial issues on the Cybercrimes Decree Law, in order to ensure full alignment with international conventions and standards of human rights. The committee, formed mostly of government ministries, rejected Al-Haq’s proposals. With the full belief of the Committee’s significance, role and specializations, Al-Haq had called for restructuring the Committee to ensure the existence of professional principles and standards and balanced representation of civil society organizations in the membership of the Committee.

Al-Haq adds that the Palestinian authority’s written response to the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Mr. David Kaye, contained in item No. 15 a pledge by President Mahmoud Abbas and Prime Minister Dr. Rami Hamdallah "to amend any article that violates the Basic Law or does not comply with the obligations of the State of Palestine, which resulted from its accession to international conventions and treaties."

Al-Haq reiterates its comments on Draft Amendment to the Cybercrimes Decree Law:

  • Limiting the judicial authority in following up on cybercrimes only to civil police, because they have the genuine status of judicial authority and according to the Budapest Convention, cybercrimes are civil crimes that fall under the jurisdiction of civil police. The articles of the Cybercrimes Decree Law refer to international cooperation in combating cybercrimes and the legal authority assigned with such cooperation with the International Criminal Police Organization (Interpol) is the Palestinian Police under the Interpol Constitution of 1956 to which the State of Palestine has acceded. The powers of investigation on children in relation to cybercrimes fall within the authority of the police according to the Convention on the Rights of the Child (CRC), the General Comment No. 10 of the Committee on the Rights of the Child and the Law by Decree on Juvenile Protection No. 4 of 2016. The validity of monitoring cybercrimes in the Decree Law should be limited to civil police, for the reasons given above, and because of the overlapping functions and powers of security services under their legislation, and for protecting the right to freedom of expression and press.
  • There is a need to amend Article (9), which was introduced in the Draft Amendment to the Cybercrimes Decree Law concerning freedom of expression and press. During discussions in the Committee in the Council of Ministers, Al-Haq proposed a paragraph to be added either to this article or under the introductory section of the Decree Law. The paragraph provides that "it shall be prohibited to construe or interpret any provision under this Law by Decree in a manner that prejudice the freedom of expression and the right to privacy, enshrined in the Basic Law, international conventions to which the State of Palestine acceded, and any relevant international standards.” Despite the importance of this proposal in legislative alignment with international conventions and its reflection on the role of the judiciary, the Committee rejected the inclusion of the comments to the Draft Amendment to the Cybercrimes Decree Law.
  • Article (15) of the Draft Amendment to the Cybercrimes Decree Law should be amended which reads as follows: “the Attorney General or one of his assistants may order the immediate collection and supply of any data, including communications, electronic data, passwords or any content it deems necessary for the benefit of investigations." The paragraph excludes "the judiciary" from the communications surveillance and data collection and provision, which should be made at the request of the Attorney General or one of his assistants and should be based on a ruling by "specialized court". Communications surveillance orders should only be carried out by “a judicial authority that is competent, transparent and independent from communication surveillance authorities” as emphasized by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in his 2017 report to the Human Rights Council, and Article (6) of International Principles on the Application of Human Rights toCommunications Surveillance of 2014.
  • Article (30) of the original Law by Decree, which allows the dissolution of a legal person (e.g. a media organization) or the deprivation of their activity for up to five years without taking into account the "seriousness of the crime" should be amended. This procedure with its consequences, and economic impacts on all employees of the legal person, should be limited to serious criminal offenses. This is in line with the requirements of the "necessity and proportionality" under the provisions of Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR)and the Human Rights Committee’s General Comment 34 on Article 19 of the ICCPR.
  • Articles (33) and (34) of the Cybercrimes Decree Law give the power to the Public Prosecution or the person it delegates from among officers tasked with judicial duties and without an order by a specialized court to search people, places and information technology tools relevant to an offence as well as seizure o felectronic devices, tools, data and information needed to uncover the truth. Such procedures should be carried out at the request of the Public Prosecution and a decision of the specialized court, as confirmed by the Special Rapporteur on the promotion and protection of the right to freedom of opinion in his 2013 report to the Human Rights Council (A/HRC/23/40) and the International Principles on the Application of Human Rights to Communications Surveillance of 2014, which stresses that communications surveillance orders should only be carried out by “a judicial authority that is competent, transparent and independent from communication surveillance authorities.
  • Article (40) of the Decree Law, which provides for the possibility of blocking websites within 24 hours according to the minutes of the security servicessubmitted to the AttorneyGeneral and the approval of the Magistrate Court. The article should be amended because it seriously diminishes the guarantees of the accused and contravenes the Basic Law and the guarantees of a fair trial set out in article 14 of the ICCPR. The article also uses loose terms to block websites such as "national security, public order and civil peace" in contravention of Article 19/3 of ICCPR and the General Comment No. 34 of the Human Rights Committee, which does not allow the usage of loose terms that expropriate the right to freedom of opinion and expression and endanger them. The paragraph also contradicts Article 27 of the Basic Law regarding media websites which do not allow the media to be warned, suspended, confiscated, canceled, or restricted except by "judicial decision".
  • Article 46 provides that “Any person who commits, participates in, intervenes in or instigates an act using the Internet or any other means of information technology which constitutes an offense under any applicable legislation, shall be liable to the penalty prescribed for the crime in question under that legislation.” This broad text restores all the "loose terms" that have been omitted in the last proposed amendments to the Decree Law, in particular crimes against the internal and external security of the State contained in the Penal Code of 1960, including, crimes aimed at the prestige of the state, weakening the national sentiment and the morale of the nation and other broad terms contained in the Penal Code. All the “loose terms” contravene article 19(3) of the ICCPR and the General Comment No. 34 of the Human Rights Committee. A new crime of "libel and slander" is developed from the Penal Code and criminalized under the cybercrimes Law, breaching human rights norms. Accordingly, the text should be repealed for violating international human rights standards.