Position Paper on the Cybercrime Law Issued by Al Nahda activists*

Introduction

The Jordanian legislative system contains many laws related to technology, which aim to regulate its use and control the wrong practices that could be committed through information systems. One example of that is the Penal Code and its amendments No. 16 of 1960, the Telecommunications Law No. 13 of 1995, the Provisional Law on the Crimes of Information Systems No. 30 of 2010, and the Press and Publications Law No. 8 of 1998.

Due to the current advances in the use of communication technology and its rapid spread, in addition to the creation of a new form of social networking online, which led to the emergence of a new pattern of practices that require control to prevent harm to people and public interests as well as provide the necessary protection for Internet users and various information systems, it was necessary to have a special law to keep up with the ongoing developments. Accordingly, the Cybercrime Law No. 27 of 2015 was approved, expanding the classification of cybercrime in accordance with the changes and developments that are taking place. In 2022, the Jordanian government submitted a draft amendment to the Cybercrime Law that would supersede the previous law, which consists of 17 articles, while the new law consists of 41 articles, making it more comprehensive and inclusive than the previous law in terms of cybercrime types. This would negatively affect the freedom of opinion and expression guaranteed by the Jordanian Constitution in Article 15/1, which states:

“The State shall guarantee freedom of opinion. Every Jordanian shall be free to express his opinion by speech, in writing, or by means of photographic representation and other forms of expression, provided that such does not violate the law.”

Hence, we, the young activists of Al Nahda who are active on social media, decided to launch a position paper that seeks to achieve a balance between reality and the articles included in the Cybercrime Law, in line with international standards for freedom of opinion and expression. From our point of view, the bill represents a direct threat to digital rights, including freedom of expression and the right to information, and would not ultimately achieve the Jordanian government’s stated goals of countering “fake news,” “hate,” and “defamation” online, which would lead to the deterioration of civic spaces as well as restrict the effective civic and political participation of young men and women and all members of society at all levels.

Notes on the draft law

General notes

• National deliberations on the draft law were limited, as it was given an urgent status by the government, while it would have been better to start an extensive dialogue and discussion on the draft law.
• The draft law is not in line with international human rights standards, particularly the right to freedom of opinion and expression.
• The law is penalty-oriented, while it would be better for the draft law to include a number of institutional and preventive measures to reduce negative phenomena in the cyberspace.
• The draft law fails to take into account the community-based, non-custodial penalties stated in the Penal Code.
• The tendency towards introducing stricter penalties rather than following a legislative plan on the gradual imposition or lifting of penalties.
• The law should not have been expedited with urgent status; it necessitated thorough deliberation and a nationwide dialogue regarding its draft.
• It would have been more beneficial to draw inspiration from the discourse put forth by His Majesty King Abdullah II in previous years. These discussion papers emphasized the significance of active participation in political affairs and the concept of “active citizenship,” a notion encompassing the utilization of digital platforms as integral tools.

Specific Notes:

1. The draft law uses overly broad and vaguely defined terms, as Articles 14, 15, 16, 17, and 19 of the draft use imprecise, ambiguous, and non-specific terms, such as “fake news”, even though these texts do not meet the requirements of international law for the formulation of legal texts with sufficient precision to allow individuals to adjust their conduct accordingly.
2. The law did not include a clear legislative regulation on hate speech and the advocacy and incitement thereof. Moreover, the draft law did not specify a definition for “hate” nor the standards on which it is based.
3. The draft law lacks any corrective or repeal measures or orders to prevent publication as preventive institutional measures that must be followed before imposing punishment.
4. The draft law included provisions that would negatively affect investment in the Jordanian cyberspace and Jordan’s economy in general.
5. The draft law did not include any criteria relating to permissible public criticism.
6. The draft law did not include a specific definition for “public figure”.
7. The draft law did not include any provisions confirming that it would not affect journalists and press institutions.
8. The draft law violates the general rules of the penal theory in terms of criminal participation and attempted crime.
9. The law impedes freedom of expression and access to information and increases online censorship, thus limiting spaces for civic participation by citizens.
10. These provisions effectively criminalize any speech that may offend public officials, although the right to publicly share content that contains criticism of officials is central to the international standards on freedom of expression, as stated in the International Covenant on Civil and Political Rights, which Jordan has ratified. This article could promote censorship and self-censorship by restricting people’s ability to speak publicly about the work of public officials, while only allowing a specific, pre-authorized group to speak on certain topics. This article can also prevent public officials and government authorities from being held accountable for the decisions they make, thus hindering Jordanian people’s ability to fully participate in political processes and civic life.
11. The draft violates UN’s recommendations regarding the need to amend the Cybercrime Law in force as to be in line with Jordan’s international obligations, that is, to ensure freedoms. However, this new draft law has added more restrictions than the ones already in place, including the recommendations by the Universal Periodic Review of Human Rights and the promise by the government to abide by them, which is Recommendation No. 71: “Ensuring that all domestic legislation is compatible with the International Covenant on Civil and Political Rights, especially with regard to the right to freedom of expression,” Recommendation No. 133 “Amending laws that impede freedom of expression and information.”, Recommendation No. 143 ” Ensuring freedom of expression and stopping the detention of all writers, journalists, and web editors on charges related to freedom of expression, and repealing the articles of the Penal Code that place illicit restrictions on freedom of expression, both on and off the Internet”, and Recommendation No. 135 “Reviewing and specifying a definition for the incitement of hatred in the amended Cybercrime Law of 2011″, among other recommendations. Furthermore, the concluding observations of the International Covenant on Civil and Political Rights of 2017 recommended that the Kingdom” review its legislation to ensure that criminal penalties are not applied to persons who express critical views, and to ensure that any restrictions on the activities of the press and media comply with the Covenant.”
12. The law draft allowed for the initiation of a public rights lawsuit directly by the Public Prosecution Office. However, it might have been more suitable to allocate this responsibility to the complainant for filing a conventional right lawsuit.

We have followed the discussions of both the Upper and Lower House of Representatives on the draft law, as well as the interaction by all the relevant circles, including media professionals, journalists, trade unionists, partisans, jurists, activists, and those concerned with public opinion, and we found that the volume of comments confirms that there are many details in the draft law that would affect the freedom of opinion and expression, and thus restrict civic spaces and limit the civic participation of young men and women. Therefore, we would like to make our recommendations on the draft law before it’s approved or turned down by His Majesty King Abdullah II.

Recommendations:

– Reconsidering the amendment of legal texts that are unfair to Internet users, in a way that would lead to the adoption of legal texts that are balanced and compatible with basic rights, such as the right to privacy, the right to exchange information, and the right to express opinions and ideas, guaranteed by the Jordanian Constitution in Article (7), which states that “Any attack on public rights and freedoms and any violation of the private life of any Jordanian are crimes punishable by law.” and Article (15), which states: “The State shall guarantee freedom of opinion. Every Jordanian shall be free to express his opinion by speech, in writing, or by means of photographic representation and other forms of expression, provided that such does not violate the law.” In addition to ensuring these rights under international law and human rights treaties, for Jordan’s ranking on the Internet Freedom Index may decline as a result of passing these arbitrary acts.

– Adding a paragraph in the law stipulating that if the lawsuit is dropped by the plaintiff, the penalty will be dropped, both by public claim and personal claim, to ensure that judicial efforts and a fair trial are not wasted and in reverence for the principle of reconciliation.

– There is a confusion between the concept of websites mentioned in the law and the general concept of licensed websites. Therefore, to avoid confusion, it must be clarified that the term “websites” in the law does not strictly apply to licensed websites, and not to use this term in a narrow context.

– The course of prosecution in electronic cases must be determined within a period no longer than 60 days, in order to achieve full justice and effectively organize the progress of case files. The room dedicated to these cases must be equipped with the necessary technical expertise to determine the offense and estimate the damage caused.

– Include texts that clarify what is meant by broad terms in a sound and clear legal form in the law, including: false news, slander, defamation, contempt, character assassination, sedition, incitement of sectarian or racial tensions, blasphemy.

– Include criteria related to permissible public criticism in the law.

–  Include provisions that specify the definition of “public figure” in the law.

Al Nahda activists

1. Nasr Ta’amneh
2. Mohammad Kasasbeh
3. Abd Al-Hakeem Al-Nsour
4. Ameena AL-Hashem
5. Ahmad Al-mistareehi
6. Mohammad Jawarneh
7. Kholoud Sammour
8. Yehia Al-S’eideyeen
9. Sawsan Al-Matar
10. Nosaibah Maqableh
11. Rakan Al-Shajrawi
12. Zohour Gharaibeh
13. Oroubah Al-Khawaldeh
14. Anwar Al-Nizami
15. Fatima Ofaishat
16. Mona Hawatmeh
17. Mostafa Abu Dari
18. Ghadeer Al-Hashem
19. Waleed Olaimat
20. Mohab Qasem