Communication law 37/2014, adopted on
"This new law comes at a time when
The International Covenant on Civil and Political Rights (ICCPR), which
The law allows the commission to grant or refuse licenses to service providers without disclosing the reasons or criteria for its decisions. It can revoke licenses if it decides that the licensee "caused serious harm to others," although the law does not define "serious harm" or provide any guidance as to what this could entail. The law allows no appeal of a decision to refuse to issue a license or to summarily revoke one.
The law also authorizes the commission to require all service providers to take the necessary technical measures to prevent the transmission of content that could "harm public order and morals," effectively as a condition of their license, raising the specter of heightened and continuous Internet self-censorship.
Prosecutors have repeatedly used the national security law and penal code provisions criminalizing "insult" to charge activists, journalists, bloggers, and others engaging in political or social commentary. A minimum three-year sentence is set out under article 15 of the national security law, for "intentionally broadcasting news, statements, or false or malicious rumors... that harm the national interests of the state." The UN special rapporteur on the promotion and protection of freedom of opinion and expression,
Articles 25 and 111 of the 1970 penal code prescribe prison sentences for anyone who publicly insults the emir or "mocks God, the prophets and messengers, or the honor of his messengers and their wives." The authorities, since
As a state party to the ICCPR and the Arab Charter on Human Rights,
The UN Human Rights Committee has also stated (http://adf.ly/5895970/http://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf) that "a law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution."
La Rue said that governments that blocked websites should:
Provide lists of blocked websites and full details regarding the necessity and justification for blocking each individual website. An explanation should also be provided on the affected websites, as to why they have been blocked. Any determination on what content should be blocked must be undertaken by a competent judicial authority or a body which is independent of any political, commercial, or other unwarranted influences.
He has also said that measures to cut off access to the Internet or mobile service entirely, regardless of the justification provided, are "disproportionate and thus a violation of article 19 [of the ICCPR]." He said that all countries should ensure that network access is maintained at all times, including during times of political unrest.
Key Concerns and Recommendations
Article 9 empowers the
Article 35 allows the CMCIT to revoke licenses if the licensee "unlawfully caused serious harm to others" or unduly delays implementation of the commission's instructions. While the ICCPR allows countries to restrict expression to protect the rights and reputation of others, permissible restrictions generally should be content specific. The UN Human Rights Committee makes it clear (http://adf.ly/5895970/http://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf) that the "generic ban" on the operation of certain sites and systems is not compatible with the ICCPR. In his
Article 35 should be amended to remove the CMCIT's authority to revoke licenses if the licensee causes serious harm, a provision that is too vague to provide sufficient clarity or constrain the commission's discretion. Under article 3, the commission already has the power to require any licensee to take measures to block specific content that harms public order or morals. Any order to block or filter content should be reviewed by an independent court. The commission should not have the authority to unilaterally revoke licenses without specific, objective criteria, and licensees should have the opportunity to appeal such decisions in court.
Articles 3 and 53 authorize the CMCIT to require a licensee to take all technical measures necessary to eliminate content it transmits that may "harm public order and morals," and to withhold or discontinue communication services for individual consumers if they use communication services in a way that violates "public morals." Article 53 also gives unspecified "competent authorities" the right to suspend service for reasons of "national security." The law does not, however, define what may be considered harmful to public order, morals, or national security. In light of
Article 19 of the ICCPR protects expressions that some may find to be deeply offensive, including comments that are deemed by some as insulting to public figures, including the highest political authorities. Similarly, speech may not be restricted merely because some find that it shows a lack of respect for a particular religion or other belief systems. While article 19 of the ICCPR allows for some restriction on speech that poses a direct and immediate threat to public order, public morals, or national security, the UN Human Rights Committee has made it clear (http://adf.ly/5895970/http://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf) that these restrictions "must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly." Restrictions must be clearly defined, specific, necessary, and proportionate to the interest protected.
In his 2013 report to the
Articles 3 and 53 should be amended to address these issues, and to comply with article 19 of the ICCPR. Article 53 should be amended to ensure it does not authorize overbroad network shutdowns or unjustified suspension of service to an individual.
Under article 70, a person who "misuses" telephone communication may be imprisoned for a year and fined up to 2,000 Kuwaiti dinars (
While the ICCPR recognizes the right to restrict free speech in protection of the rights and reputations of others, however, these restrictions "must be constructed with care," ensure that they do not stifle freedom of expression in practice, and should not provide for "excessively punitive measures and penalties." Furthermore, as stated explicitly (http://adf.ly/5895970/http://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf) by the UN Human Rights Committee, "imprisonment is never an appropriate penalty" for defamation.
In addition, in his 2011 report to the
Article 70 should be amended to remove imprisonment as a punishment for any speech violations that amount to defamation as defined by law. It should ensure that fines are proportionate, based on the severity of the violation, and levied only after providing a reasonable opportunity to correct the infraction. Individuals should be able to appeal the fine. In addition, subsection (f), which allows for up to two years imprisonment for anyone who "contributes to the provision of communication services that violate public order or morals" should be removed.
TNS 24HariRad-140822-30FurigayJane-4835802 30FurigayJane
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