JURIST Guest Columnist Mohamed Abdelaal of McKinney School of Law and Alexandria School of Law discusses the significance of Egypt’s new cybercrime draft law…

On May 10, 2016, the Egyptian House of Representatives began to consider a new 33-article cybercrime draft law[In Arabic] where a number of government officials, including representatives from the Defense and Interior Ministries, were invited to share their comments on the bill before being put to a pending parliamentary vote. The move came after MP Tamer El-Shahawy, a former military intelligence general, submitted the draft law for the legislative house for its consideration. According to the MP, his motion in suggesting the draft law was urged by a desire to criminalize electronic criminal practices, mail fraud and the establishment of websites promoting terrorism or the transfer of information.

Despite the fact that El-Shahawy’s motive seems benign, the draft law possesses a serious threat to fundamental individual rights and freedoms, rule of law, and the freedom of information—to the extent that the law was heavily criticized by human rights organizations and political activists in Egypt—that is no more than an attempt to widen the government grip to suppress individual rights and freedoms. However, the draft law has been praised by MPs affiliated with the government, as well as pro-government TV shows, that it will help in fighting terrorism and lessen the severity of the security insurgency that is widely witnessed in the country.

Below, I provide my analysis to some of the most controversial articles in Egypt’s new cybercrime draft law.
Firstly, Article 11 punishes by imprisonment of no less than three (3) years and a fine of no less than 100,000 Egyptian pounds (equivalent to $11,250) for, “[t]he establishment of a website with the aim to promote the commission of any crime stipulated in the Penal Code or any of the State’s special laws.” According to one of Egypt’s special laws, the Public Protest Law of 2013, which regulates the act of protest and classifies it as a crime if committed without the permission of the competent authorities, and is punished by sentences from one year. Reading this law together with Article 11 of the cybercrime draft law reveals that, under the latter, inciting to protest could be a more serious crime than protesting itself. In other words, pursuant to Article 11, the establishment of a website to incite to protest could be punished by up to three years in prison and a fine of no less than 100,000 Egyptian pounds. Conversely, pursuant to 2013 Public Protest Law, those who actually protest without the approval of the authorities could be sent to only one year in prison.

Secondly, Article 23, asserts that,

“whoever commits any crime mentioned in this act with the aim of harming public order; endangering safety and security or society; endangering the life and security of citizens; preventing authorities from undertaking their duties; suspending the Constitution, laws or regulations; harming national unity or societal peace; defaming a heavenly religion; and assaulting rights and freedoms enshrined by the Constitution could face either life imprisonment or aggravated imprisonment.”

In fact, this article failed to achieve one of the most important goals of any punitive legislation; that is that the criminal conduct must be unequivocally determined. More precisely, Article 23 committed the same mistake done by Egypt’s most punitive legislations such as, the Public Protest Law of 2013 and the Anti-Terrorism Law of 2015[PDF], when it deliberately calls for a criminal sanction in the event of a violation or a threat to some used loose terms like “public order,” “national unity,” and “societal peace.” Moreover, the article failed to provide a precise definition to these terms or even to provide any guidance on what is exactly meant by these loose terms. Accordingly, citizens are likely to be subjected to the harsh criminal sanctions listed in the article based on the speculations of the authorities regarding the meaning of these loose terms—a situation that really hurts two of the most enshrined constitutional principles. Needless to say that the conduct of the article in using loose and vague standards in determining the content of a given crime significantly hurts two of the most enshrined constitutional norms; the principles of legality and legal certainty as asserted in Article 95 of Egypt’s Constitution of 2014[PDF].

Apart from the loose and sweeping-broad terms used by Article 23, the article sets a sanction of either life imprisonment or aggravated imprisonment for defaming a heavenly religion. However, pursuant to Article 98(f) of the Penal Code of 1937[PDF], as amended by Law 147/2006, blasphemy is a crime that should be punished by “imprisonment for a period of no less than six months and not exceeding five years, or a fine of no less than five hundred pounds and not exceeding one thousand pounds.”

A careful reading of Article 23 of the Cybercrime Law and Article 98(f) of the Penal Code reveals that these two laws are criminalizing a broadening swath of the blasphemy by applying a double standard. That is, according to Article 23 of the Cybercrime Law, the crime of blasphemy could earn its perpetrator either a life sentence or aggravated imprisonment if committed online. However, the same crime is punished by either a five-year imprisonment or a fine if committed anywhere else.

Another controversial provision is that of Articles 12 and 13 of the draft law, which punish information technology systems managers with a term of imprisonment that could reach three years and a fine up to 200,000 Egyptian pounds ($22,660) if they failed report or to take reasonable precautions regarding a successful cyber attack on the information system or the email they managed. In fact, these two articles are poorly drafted since they render the work of the information technology systems managers at stake by not providing any guidance on what kind of reasonable precautions should be taken. Further, the two articles render the work of the IT managers a crime in certain cases.

All things considered, a careful reading of Egypt’s cybercrime law draft reveals the fact that it is no more than an attempt to grant the authorities a reason to crack down on individual rights and freedoms. It is worth noting that the military background of the MP Tamer El-Shahawy, the proposer of the law, provides a valid reason on why the draft law’s primary goal is to extend the government grip. It looks like this military background failed Mr. El-Shahawy to acknowledge the fact that freedom of speech and expression is the most cherished value obtained by the Egyptians after two uprisings that toppled two defiant regimes in 2011 and 2013 respectively. That is, this law will target political activists and dissenters who let their views and thoughts out online by restricting their freedom of expression and rendering them vulnerable to criminal prosecution.

Above all, the Cybercrime draft law highlights one of Egypt’s most suffered problems when it comes to punitive legislations. Precisely, as mentioned above, laws like the Penal Code of 1937, the Public Protest Law of 2013, and the Anti-terrorism Law of 2015 could serve the same purpose the Cybercrime Law of 2016 intends to serve in criminalizing terrorism, acts that endanger public order and social security, blasphemy, and unauthorized protest. That being said, Egypt Cybercrime Law could be regarded as legislative redundancy.

Mohamed Abdelaal is an assistant professor at Alexandria University School of Law and an adjunct professor at Robert H McKinney School of Law. He specializes in constitutional law, administrative law, and comparative law.

Suggested citation: Mohamed Abdelaal, Egypt’s New Cybercrime Law: Another Legislative Failure, JURIST – Academic/Commentary], July 12, 2016, http://jurist.org/academic/2016/07/Mohamed-Abdelaal-Egypt-cybercrime.php.