On 17 October 2019, at the request of the Attorney-General of the State of Palestine, the Magistrate Court of Ramallah rendered a decision, ruling for the blocking of 59 websites at once. The Court decision was premised on Article 39 of the Law by Decree on Cybercrimes No. 10 of 2018, which provides:
“(1) The competent authorities of investigation and seizure, in the event they monitor hosted electronic websites broadcasting either inside or outside the State, post any expressions, figures, images, films, advertising materials or else, which may threaten the national security, public order or public morals, shall be entitled to submit a report thereon to the Attorney General, or one of his assistants, and request the permission to block the broadcast of the electronic website(s) or block some of their links.
(2) The Attorney General, or one of his assistants, shall submit the request for a permission to the Magistrate Court within 24 hours, enclosed with a memorandum of his opinion. The Court shall render its decision on the request at the same day it is brought before it; stating either its approval or rejection, provided that the duration of the blockage does not exceed six months, unless the duration is renewed in accordance with the procedures provided under this Article.”
This decision was preceded by the blocking of almost 30 websites, all at ones, in 2017, putting journalists on trial on basis of their work in Journalism and publishing activities; where some are currently still on trial under the Palestinian Judiciary in accordance with the Law by Decree on Cybercrimes. In addition to that, and preceding the mentioned decision, the Law by Decree on Cybercrimes received widespread criticism from Al-Haq and many other Palestinian civil society organisations for its infringements of the right to freedom of opinion and expression, freedom of the press, digital rights, and the right to privacy, prompting the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye (hereinafter as the Rapporteur) to direct a communication to the Palestinian Government, dated 16 August 2017, based on two communications Al-Haq sent to the UN Special Rapporteur Mr. Kaye that included Al-Haq’s comments on the Law by Decree on Cybercrime and the abuses of the right to freedom of opinion, press, and digital rights in Palestine.
In his written communication directed to the Palestinian Government,and published to the public, and on the electronic website of the mandate of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr. Kaye expressed his deep concern over information received, which include that the Palestinian Authority (hereinafter referred to as PA) has blocked at least 30 electronic websites, including websites publishing news, or opinions critical of the PA, and that the Palestinian Law by Decree on Cybercrime raises concern over the right to freedom of expression and right to privacy on the internet.
The Special Rapporteur, Mr. Kaye also expressed his “deep concern that the Palestinian Law by Decree on Cybercrimes excessively uses overbroad terms that lack adequately clear definitions; allowing public authorities to criminalise the expression of opinions on the internet, and impose severe sanctions on those who don’t comply with its terms. In aaddition, and in the absence of a law on the Right of Access to Information, the Law by Decree on Cybercrimes mayresult in huge censorship and self-censorship practiced by media outlets and individuals, over themselves, particularly those who criticise the Executive Authority. Another concern is also raised in regard to the multiple references to severe sanctions prescribed by the Law by Decree, inconsistent with Article 19 of the International Covenant on Civil and Political Rights (hereinafter referred to as ICCPR… and that the sanctions imposed by the Law by Decree do not comply with the requirement of proportionality established by Article (19) paragraph (3) of the ICCPR”.
The Special Rapporteur called on the PA to “take all necessary steps to review the Law by Decree on Cybercrime to ensure it is in consistency with the State of Palestine’s obligations under the International Human Rights Law.”
In September 2017, the Palestinian Government sent a written response to the above mentioned Special Rapporteur’s Communication; the response included 15 clauses, and reaffirmed, among other issues, the “Pledge made by the President of State of Palestine and Prime Minister to amend any article that runs counter to the Palestinian Basic Law or is incompatible with the State of Palestine’s obligations under International Conventions.” In addition, within its response, the Palestinian Government affirmed that the Palestinian Government is proceeding with taking the necessary procedures to update the Law on Printed Materials and Publication, giving journalists, media representatives and correspondents necessary guarantees for their work in accordance with the Palestinian Basic Law and International Conventions, stressing the importance of continuing the work of the Committee for Review of the Palestinian Law by Decree on Cybercrimes, and the necessity for the committee to complete its functions as soon as possible in order to duly take procedures” However, the Law by Decree on Cybercrimes has not been amended as up to now.
After the failure of three rounds of dialogue held with the Government in 2017,with participation of Al-Haq and Palestinian civil society organisations,., Al-Haq published its detailed comments on the Law by Decree on Cybercrime in 2018, it also sent letters with its’ comments on the law by decree to the Prime Minister, Minister of Justice, and Minister of Foreign Affairs in his capacity as Chairman of the National Standing Committee for Following-up on the State of Palestine’s Accession to International Conventions and Treaties. Al-Haq stressed, and continues to stress the urge for making substantial amendments to the Law by Decree on Cybercrimes, based on International Human Rights Conventions, standards, and best practice.
This decline in the freedom of opinion and expression and digital rights comes in the broader context of the deteriorating Palestinian political system and situation of human rights in Palestine, caused by the absence of public authorities, unprecedented monopoly of the Executive Authority and its apparatus over the decision-making process. In addition to the years-long absence of the Palestinian Legislative Council (hereinafter as the PLC), and its subsequent dissolution through an unconstitutional decision issued by the Supreme Constitutional Court, this comes along with the efforts made for reforming the Judicial Authority and Justice Sector which failed due to the interference of the Executive Authority and lack of will for the reform, in addition to the absence of community involvement in the decision-making process with the continuous flow of laws by decrees issued by the President for years, and it’s problematic constitutionality, which requires a topmost priority of taking an immediate action to hold simultaneous public presidential and legislative elections and guaranteeing its fairness and transparency.
Al-Haq’s comments on the Law by Decree on Cybercrimes No. 10 of 2018:
- There is a need to review the Law by Decree on Cybercrimes to guarantee its full consistency with international human rights treaties, standards, and best practice, including as outlined by International Convention on Cybercrime of the Council of Europe ( or Budapest Convention), Article 19 of the ICCPR enshrining the (right to freedom of opinion and expression), Article 17 of the ICCPR on the (right to privacy), and the 2014 International Principles on the Application of Human Rights to Communications Surveillance.
- Amending Article 3 of the Law by Decree, which provides that “a specialised cybercrimes unit shall be established within the Police agency and security forces.” to instead establish a single cybercrimes unit that operates under the Police agency, and supervised by the Public Prosecution. Moreover, for the purposes of the Law by Decree on Cybercrimes; limiting the judicial police capacity to the police apparatus, to preclude the overlap of tasks within the of Palestinian Security Agencies while prosecuting cybercrimes, which violate rights.
- Amending Article 29 of the Law by Decree that allows the dissolution of a juridical person (i.e. a media institution) in Cybercrimes, to ensure compliance with the two conditions of “necessity and proportionality” confirmed by international standards. Where also the court decision issued for the dissolution be restricted to serious felonies of cybercrimes, which shall be provided within the Law by Decree, as the dissolution of a media institutions is a severe punishment which may jeopardise the rights of all the institution’s staff.
- Amending Article 31(1) of the Law by Decree that states the obligation on the service providers to provide the competent authorities with the subscriber’s information which help uncover the truth, at the request of the Public Prosecution or competent court, and instead; limit this procedure to thecompetent court only, and by a reasoned court decision that demonstrates the fulfilment of the two conditions of the necessity and proportionality in order to achieve a lawful objective worthy of protection. In addition to amending paragraph (2) of the same text which requires service providers to block the link, content or application on the internet based on the orders issued forth thereto from the judicial authorities, to instead be based on the commitment to the two conditions of necessity and proportionality, in addition to a reasoned court decision and limited to felonies, and identifying such crimes.
- Amending Articles 32 and 33 of the Law by Decree which allows the Public Prosecution or the officers it deputes from officers with judicial capacity (i.e. security services), to obtain the devices, electronic data or information, traffic data, data relating to communication traffic, passing information, information relevant to communications’ transactions, subscribers information, the search of information technology means, or obtaining the permission to seize and restrain the information system either wholly or partly copy data, or else. Whereas amending it to exclusively limit such procedure to the competent court and on grounds of a reasoned court decision that demonstrates the availability of the two conditions of necessity and proportionality with the aim of achieving a lawful objective that is deserving of protection.
- Amending Article 34 of the Law by Decree that allows the Attorney General or one of his assistants to issue an order to immediately collect and provide any data; including communication traffic, electronic information, traffic data, or subscriber’s information which he deems necessary for the benefit of investigations. This provision should be amended by prescribing an obligation that such procedures should be taken once based on a permission from the competent court, in addition to a reasoned court decision, demonstrating the availability of the necessity and proportionality once.
- Removing Article 39 of the Law by Decree on Cybercrimes which allows the blocking of websites based on reports submitted by the competent authorities of investigation and seizure (Security Services) to the Attorney General or one of his assistants in order to receive permission from the Magistrate Court block the websites within 24 hours, using overbroad terms relevant to national security, public order and public morals, which has been the provision lately used as a ground for blocking all 59 websites by a decision from the Magistrate Court., while such article conflicts with the Basic Law, International Conventions, standards and best practice, and guarantees of a fair trial.
- Removing Article 45 of the Law by Decree that provides the sanctioning of any person who perpetrates an act constituting a crime under any enforced legislation which is implemented over the internet or any means of information technology, or that who is involved as an accomplice, or abettor to its perpetration, while the Law by Decree on Cybercrimes did not state the same penalty prescribed for such crime under that other legislation. Where such expansive provision brings tens of “overbroad terms”, provided for under Palestinian legislations, particularly penal laws, under the enforcement of Law by Decree on Cybercrimes; of that, crimes committed against the internal and external national security provided under the Penal Code of 1960, inter alia, the crimes of undermining “solemnity of the State” and “weakening the national sentiment” as well as the crimes “Attenuating the Nation’s psychology” and tens of other loose terms that violate Article 19 of the ICCPR and relevant international standards on the right to freedom of opinion, freedom of the press, and digital rights, which for that requires the removal of this article.
- Adding an article to the Law by Decree on Cybercrimes that ensures the adaptation of International standards of human rights within its provisions overall, as well as ensuring the well-being of the practical implementation. Such article reads as follows: “It shall be prohibited that any provision under this Law by Decree be interpreted or construed in a manner that violates the right to freedom of opinion and expression, freedom of the press, digital freedoms, and right to privacy enshrined in the Amended Basic Law the International Conventions to which the State of Palestine acceded, as well as the relevant international standards.”
Accordingly, and in line with of promoting the right to freedom of opinion, freedom of the press and human rights, Al-Haq calls for the following:
- The urge for President Mahmoud Abbas to issue a decree, calling for simultaneous legislative and presidential elections to end the crisis, which the Palestinian political system suffers from, and create a free environment for public elections in addition to empowering the citizens, particularly the youth, to freely exercise their right to elect their representatives and participate in the decision-making process, as well as respecting the results of the democratic, free and impartial elections, and maintain its regularity, in respect to the Constitutional Legislature and provisions of the law.
- The necessity for the full adaptation of the Law by Decree on Cybercrimes No. 10 of 2018 with International Conventions, standards and best practice in regard to the right to freedom of opinion and expression, freedom of the press, digital rights, and the right to privacy.
- The immediate withdrawal of the court decisions on blocking websites both taking place in 2017 and in 2019; as such decisions violate the International Conventions, and standards, as well as on the provisions of the Basic Law, which safeguard the right to freedom of opinion and expression, freedom of the press, and digital rights. This, in addition to taking measures to ensure the non-recurrence in respect to the principle of the rule of law, constitutional legislature’s will, and State of Palestine’s obligations under International Conventions, particularly the Core Human Rights Conventions that it acceded to without reservations.
- The necessity for aapproving a Law on the Right to Access to Information that is fully consistent with international standards and best practice.
- The necessity for reviewing and approving a Law on the Higher Council for the Media, which ensures the Council’s independence and effectiveness and role in protecting the right to freedom of opinion and expression and freedom of the press. In addition to creating a pluralistic, competitive, and free media environment, and investing in the media sector.
- The necessity for approving a modern law for the Palestinian Journalists’ Syndicate (hereinafter as PJS) for its importance for promoting the PJS’s role in protecting the right to freedom of opinion, the freedom of the press, and digital rights, and protecting the journalists’ rights, and defending them. This comes in context where the the enforced Law on the Palestinian Journalists’ Syndicate, law No. 17 of 1952, is incongruent with international standards and does not contribute to protecting freedom of the press and journalists’ rights.
- Limiting the legislations and draft laws on freedom of opinion and freedom of the press and ensuring its full consistency with international standards. This, within a well-defined legislative plan with clear goals and priorities to uplift the right to freedom of opinion, freedom of the press, and digital rights.
- Removing confinement in publication cases and replacing it with civil compensation, if relevant, inconsistence with the International Conventions and standards, particularly Article 19 of the ICCPR, to which the State of Palestine acceded, as well as with the General Comment 34 of the UN Human Rights Committee on Article 19 of the ICCPR.
- Repealing the application ofthe “licensing” system imposed on the establishing of audio-visual and print media outlets, enforced by non-democratic regimes; as it violates the International standards and best practice, in addition to its association with the “Security Clearance” condition, which requires that prior approval be obtained from security apparatus on licencing and renewing licences of media outlets, as imposed on licencing and renewing the licences of broadcasting stations, but instead; replacing the licensing system with registrations; as applied in democratic regimes, only by submitting all the required documents, as a right enshrined within the constitution and international standards. as the “security clearance” condition violates the Basic Law and relevant International Conventions and standards, and contravenes with the decision made by the Council of Ministers in its Session No. 133, dated 24 April 2012, which repeals the requirement of the “Security Clearance” condition, under any designation. Thisdecision has not been implemented until today, and requires actual cancellation of the “Security Clearance” condition as well as serious oversight on the ground, to ensure proper enforcement and accountability where no implementation is made.
This position paper was originally published in Arabic on 23 October 2019, available here.