The Egyptian Initiative for Personal Rights (EIPR) released a new study titled "Virtual Freedom: Towards Ending the Cybercrime Law's Repression of Digital Freedom of Expression". The study aims to set guidelines to enable legislators, judges, executives and various stakeholder groups to find an alternative regulation of content produced and circulated online. It aims to strike a balance between protection and promotion of the fundamental rights and freedoms of online users on the one hand and respect for the recognized constitutional and international standards, without prejudice to their essence, on the other hand.

The study is based on observations documented by EIPR throughout its engagement with a wide range of cases that included a clear infringement on citizens' freedoms, under the pretext of "promoting online content that harms public order or national security", spreading "false" news, inciting violence, discrimination and hatred, or even infringing on so-called family principles and values in Egyptian society.

The study, prepared by Amr Abdel Rahman, the director of EIPR’s Civil Liberties Unit, applied its proposed guideline to one of the key laws employed to suppress freedom of expression online, namely the Anti-Cyber and Information Technology Crimes Law No. 175 of 2018, known in local media as the Cybercrime Law. The law expresses in an integrated manner the current regime's vision for the limits of freedom of expression online and its approach to restricting it. The study shows that the prevailing trend among Egyptian legislators and judges is to subject online content to special forms of restriction, due to the wide spread of this content. They adopt a significantly restrictive approach in formulating these restrictions, which does not adhere to the controls stipulated in the Egyptian constitution or international human rights law.

Alternatively, the study presents an approach derived from both traditions that the Egyptian legislators ignored, namely international human rights law and the Egyptian judicial heritage itself. It proposes that the articles restricting freedom of expression - when drafted - be tested at three levels to ensure that they comply with the criteria of legality, necessity and proportionality. Under each of these three criteria, the study proposes detailed steps that help the legislators preserve the content of freedoms when they restrict them. These same steps are based either on explicit texts of international conventions and their interpretations adopted by the relevant UN committees, or on Egyptian and international judicial precedents in contexts similar to our reality.

Applying this composite test to the Cybercrime Law, the study concludes that the law - in its current form and judicial application - does not comply with any of the aforementioned criteria to restrict freedom of expression, whether in terms of legality, necessity, or proportionality. The law does not specify the acts it criminalizes precisely and clearly, nor does it specify how to prove them or prove their criminal intent, nor does it specify precisely, clearly and comprehensively the persons subject to its provisions or their obligations. The law also does not specify precisely the subjects of its legal protection and whether the protection of these subjects is necessary in a democratic society, nor does it specify the nature of threats contained in these subjects and whether confronting them necessarily requires the restriction of users' freedom of expression. It also criminalizes acts already criminalized in other laws and does not provide evidence of the need for further criminalization or heavier punishment. The law imposes precautionary and punitive measures that are disproportionate to the nature of the threat to the subjects of its protection. It expands the scope of restriction to unreasonable limits, violates the essence of freedom of expression by restricting it, fails to take into account the interests of weaker parties, and allocates redundant resources to this restriction.

The law resulted in explicit constitutional violations, represented in criminalization without a clear legal text, the imposition of custodial penalties for crimes excluded from these penalties, an unprecedented expansion of the powers granted to the trial judge to identify acts and sources of threats that were vaguely identified in the law, and a clear conflict between the conduct of the prosecution and the conduct of the courts, and even between the rulings of the same court. The law also does not address the dilemma of users' lack of legal certainty that makes them able to understand the legislator's intention and regulate their behavior in light of it so as not to breach the law. So, the law – according to the Egyptian Supreme Constitutional Court – has turned into a mere "trap" for online users.

To get out of this trap, the study offers the legislators and judges three alternatives derived from our proposed guidelines:

• Conducting a comprehensive review of the law to ensure that it complies with the constitution and the principles of international human rights law

• Amending the executive regulations to clarify some ambiguities in the law, without need to introduce legislative amendments to the articles of the law

• Issuing a new circular from the Public Prosecutor to the investigators under his supervision, specifying the controls and procedures of investigation and bringing charges based on the law

EIPR believes that reviewing the provisions of this law, or at least reducing their ambiguity, will remove a major obstacle to a comprehensive legislative review of the system governing expression online. This review will not be complete without applying the same standards to other laws linked and integrated with this law, foremost of which are the Anti-Terrorism Law No. 94 of 2015, the Press and Media Regulation Law No. 180 of 2018, and the Telecommunications Regulation Law No. 10 of 2003, in addition to a large number of relevant penal code provisions. This desired legislative review requires the issuance of special legislation to regulate freedom of information as an integral component of freedom of expression that gets special importance when practicing expression online. The promulgation of this law would precisely determine what data and information is entitled to be withheld and protected, and whose disclosure constitutes a punishable crime, and consequently would strengthen the security or legal certainty that online users lack in Egypt.

Read the full study here