https://www.madamasr.com/en/2018/07/17/feature/politics/egypts-new-media-laws-rearranging-legislative-building-blocks-to-maximize-control/
Amid backlash from various stakeholders, Parliament passed three highly contested laws regulating Egypt's media landscape by a two-thirds majority on Monday.
The laws, which took a convoluted and chaotic path through the legislature, set forth an array of regulations governing state and private media in Egypt that, when signed into law by President Abdel Fattah al-Sisi, will effectively disband and reformulate three key media regulatory bodies which have operated in a murky legal environment since they were first created in 2016. The most powerful of these bodies, a the Supreme Media Regulatory Council, has been granted far-reaching powers that, combined with draconian rules governing media practices contained within the law, will allow authorities to further censor the press and restrict journalists' work.
The new laws — parts of which have been criticized as unconstitutional — come in the context of a wider crackdown on the press in recent years with Egyptian authorities harassing and imprisoning journalists, blocking access to hundreds of websites, silencing oppositional voices and taking direct ownership of private media outlets.
The evolution of the controversial laws over the past two and a half years sheds some light on how authorities have worked to grant themselves greater jurisdiction to assert control over the media and to clamp down on overall freedom of expression in Egypt.
The process dates back to December 12, 2016, when the government submitted a unified media regulatory bill to the legislature. In response, Parliament's Media, Culture and Antiquities Committee (MCAC) requested that the bill be splintered into two. The first piece of legislation would create the Supreme Media Regulatory Council (SMRC), the National Press Authority (NPA) and the National Broadcasting Authority (NBA), which were the three bodies first introduced in the 2014 Constitution to replace the Information Ministry, the Supreme Press Council (SPC) and the Egyptian Radio and Television Union. The second bill was tasked with regulating press and media practices more broadly.
The proposal to split the legislation was initially protested by the Journalists Syndicate, the SPC and several members of the committee that drafted the unified bill. Parliamentary Speaker Ali Abdel Aal eventually sided with MCAC, arguing that the Constitution requires that press and media bodies be consulted on bills pertaining to their practice — accordingly, such bodies must first be created and subsequently consulted on a second regulatory bill.
On December 14, 2016, the first bill was passed in Parliament by a two-thirds majority and was ratified by Sisi later that month. According to the timeline stipulated in this first bill, the second portion would be passed within a month of the establishment of the three new regulatory bodies.
Yet, by May of this year, nearly a year and a half after the promulgation of the first piece of legislation, Parliament had yet to pass the second.
At a parliamentary session on May 6, Abdel Aal made an inquiry to Heikal, regarding the progress of the second bill. In response, Heikal informed the parliamentary speaker that it would be ready for the general assembly by the end of the week. But on June 10, the general assembly received not one, but three bills to consider.
Heikal had abandoned Parliament's resolution to divide the unified bill into two, and proposed a different approach: to repeal the first bill signed into law in December 2016 and instead break down the legislation into three separate laws: the Law on Regulating the Press and Media and the SMRC; the law regulating the NPA; and the law regulating the NBA. Two days later, on June 12, the legislature approved the three bills in an initial vote.
The splitting of the legislation raises questions as to the reasons motivating this change in course, how it relates to the SMRC acquiring new areas of jurisdiction by virtue of the new bill, and what would become of the new regulatory bodies that had already been created by the original legislation.
Additional authority and a conflict of jurisdiction
Member of Parliament Galila Osman says that she was surprised to learn that MCAC head Heikal was calling on Parliament to approve three bills, instead of the anticipated press and media practice bill. She tells Mada Masr that she attended all MCAC meetings convened to discuss the bill until early April and that, until that point, the committee had only discussed the provisions of the press and media practice bill, which was supposed to constitute the second portion of the unified media regulatory bill proposed in 2016. Osman was absent from Parliament while observing labor union elections, and when she came back, she found that Heikal was calling on Parliament to repeal the first bill that set up the three regulatory bodies and introduce three new pieces of legislation instead.
Backers of the move cited legal technicalities in their decision to split the bill and said the content of three new laws largely conforms to the legislation originally proposed in 2016.
The first of the three laws — the Law on Regulating the Press and Media and the SMRC — includes both the basis for setting up the council and lays out the regulations governing media practices. Mada Masr obtained a copy of the MCAC report that explains the reasons behind the move. In it, the committee cites rapid technological developments in media outlets, broadcasters and social media as among its justifications.
The restructuring serves the purpose of keeping any one entity from encroaching on the jurisdiction of the others and preventing jurisdictional overlap.
According to MCAC secretary Nader Abdel Qader, the committee's initial December 2016 motion to divide the unified media bill was prompted by a recommendation from the State Council's Legislative and Fatwa Committee, which advised that the regulatory bodies must first be created so they may then be consulted on the bill regulating press and media practices.
But Abdel Qader adds that the creation of the SMRC, NPA and NBA engendered a conflict of jurisdiction. The MCAC, therefore, found that the safer course would be to dedicate a separate piece of legislation for the provisions pertaining to each of the three bodies: the Law on Regulating the Press and Media and the SMRC.
Abdel Qader explains that the three bills are essentially "one three-pronged bill." Splitting it up, he adds, was merely an attempt at restructuring on the part of MCAC, and no changes were introduced to the provisions that were previously approved by various media and press bodies in 2016. This restructuring serves the purpose of keeping any one entity from encroaching on the jurisdiction of the others and preventing jurisdictional overlap.
Additionally, MCAC deputy head MP Galal Awara argues that the initial move to divide the unified bill into two was taken to heed the Constitution, which requires that media bodies and institutions be consulted on bills pertaining to media practice before they are passed, while the further division into three bills was dictated by practical implementation.
The SMRC's role is to devise and implement a media strategy for the Egyptian state, Awara tells Mada Masr, because by virtue of the Constitution, the council should be responsible for protecting society, the audience and press practice. The NPA and NBA must therefore answer to the SMRC.
The division of the legislation was adopted to avoid having each of these authorities operate separately under self-management and without supervision, Awara says. Oversight over the NPA and the NBA comes as a new item on the SMRC's list of responsibilities, in addition to its original purpose of regulating the operations of privately owned media outlets and broadcasters.
This is particularly necessary, Awara says, given that the SMRC has not been playing any part in holding the NPA accountable with respect to plans to boost the distribution of state-owned press publications, or the NBA with respect to improving the content provided by state-owned television channels to stay competitive with privately owned broadcasters. For Awara, this supports the argument that the new structure is intended to allow the SMRC to manage the entire media landscape in accordance with the state's vision.
Awara recalls that ever since the original unified media bill was submitted to the MCAC for review in 2016, he was in favor of the legislature drafting separate bills to regulate the press and conducting community dialogue on them, especially given that the concept of one law governing all press and media matters is unconstitutional. However, the majority of MCAC members rejected that proposal and insisted on the unified bill, as its provisions had already garnered the collective approval of press and media professionals.
Awara contends that the majority of the articles included in the three new bills were derived from the unified bill. Parliament consulted on them with all press and media bodies, including those that were created under the press and media regulators law, in compliance with the stipulations of the Constitution. Articles 211, 212 and 213 of the Constitution provide for the SMRC, NPA and NBA to be consulted on bills and regulations pertaining to their practice.
For his part, Abdel Qader also maintains that MCAC did not add any new provisions that media bodies were not consulted on, and argues that the amendments introduced by the committee relate to the developments that have taken place in the country since the unified bill was drafted in 2016.
As an example, he points to the article pertaining to the capital requirement for any company that wishes to establish a television channel. In 2016, the bill provided for a requirement of LE25 million. To keep up with the long-term impact of the flotation of the Egyptian pound in November of that year, the new bill sets LE50 million as the requirement, which he argues is still meager, considering that it is how much talk show host Amr Adib is paid.
Another change was introduced to the articles pertaining to the composition of the SMRC, NPA and NBA. According to Abdel Qader, the number of board members in each body was reduced from 13 for each body to nine, which he argues is the norm in several other countries.
Yet critics disagree that the changes in the new legislation are innocuous, arguing that they do not conform to the original unified bill and grant the SMRC sweeping, unsanctioned powers.
The new law on the SMRC grants the council new jurisdictions that go beyond media practices and allow it to infringe on the public sphere and limit freedoms in general.
Karem Mahmoud, the former general secretary of the Journalists Syndicate and a member of the National Committee for Media and Press Legislation, which drafted the unified media legislation and is affiliated with the Journalists Syndicate, reports significant discrepancies between the laws that were approved by Parliament in June and the original unified bill.
He tells Mada Masr that the new Law on Regulating the Press and Media and the SMRC grants the council new jurisdictions that go beyond media practices and allow it to infringe on the public sphere and limit freedoms in general.
According to Mahmoud, the new law grants additional powers to the SMRC with regard to blocking websites, while the unified bill that his committee drafted did not give the council the sole authority to censor newspapers or broadcasters.
According to Mahmoud, Article 3 of the original unified bill created an exception allowing for censorship in a time of war or in the event of military mobilization by seizing a print newspaper, removing material published in violation of a censorship directive by an online newspaper, or preventing the rebroadcast of such material by a broadcaster. Such measures could only be taken through an order by the prosecutor general upon a request from the competent administrative body. The prosecutor general would then be required to submit the order for review to the competent division of the appeals court that has jurisdiction over the area where the headquarters of the newspaper or broadcaster is located within 24 hours of its issuance. The court may endorse the decision if the material is found to be connected to the reason for which the war or military mobilization was declared, or otherwise revoke it.
Under the new law, Mahmoud explains, the SMRC, not the prosecutor general, is competent to issue censorship directives, while allowing the relevant party to appeal against such an order before the Court of Administrative Justice.
Furthermore, the unified media bill penalized press violations with fines only and did not allow for the blocking of access to websites, according to Mahmoud. However, the blocking of websites is a mainstay in the new legislation drafted by the MCAC. For example, while the unified media bill stipulated that licensing-related violations by media outlets, broadcasting institutions and websites would be penalized by a fine of no less than LE1 million and no more than LE2 million in addition to the revocation of license, the new Law on Regulating the Press and Media and the SMRC allows for blocking the website on top of these two penalties.
According to Mahmoud, it also introduces a provision that requires any person or entity that wishes to create a website to obtain a license from the SMRC, even if their content does not fall within the purview of press or media activity.
In fact, the new law is the first piece of Egyptian legislation to introduce a legal framework to regulate websites. It defines a website as a "licensed page, link or application that offers press, media or advertising content, be it text, audio, pictures, video or multimedia; broadcasts under a given name; is assigned a specific URL and domain; and is created, hosted or accessed via the world wide web."
Ahmed Khair, the director of the Support for Information Technology Center NGO, says that all provisions pertaining to websites within the law should be rephrased by IT specialists. Khair points out that the definition of a website is extremely broad, classifying any page or personal profile on Facebook, Twitter, YouTube or other platform as a website that falls under the authority of the SMRC.
"The Law on Regulating the Press and Media and the SMRC would apply to citizens who do not work in the press or media. That would be the equivalent of the Doctors Syndicate law applying to non-doctors."
Khair adds that Article 6 of the Law on Regulating the Press and Media and the SMRC grants the council vast powers to license, block or halt the activity of any website, regardless of the content it offers. For example, if a restaurant owner creates a Facebook page to promote their business, they would now be required to obtain a permit from the SMRC, and the council has the authority to block the page or halt its activity, Khair says.
Another added feature in the new law is its designation of different licensing and permit procedures for websites that offer press content and those that offer broadcasting content, according to political systems and constitutional law expert Mohamed Samir. Samir points out that Article 34 lays down a capital requirement of LE100,000 for the creation of a website that offers press content, while Article 53 includes a capital requirement of LE2.5 million for a website of a television station or channel. Additionally, Article 59 requires anyone seeking to create or operate a website to pay a fee of no more than LE50,000 to the SMRC, although it does not specify how this applies to online media outlets.
Issues with the new law stem from a failure on the part of legislators who drafted the bill to understand how websites work, or their general aversion to technology.
Khair points out that the bill does not make a distinction between websites that offer written press content and those that offer both written and video content. It also neglects to specify the legal status of websites of press organizations that issue print publications, or those of audio or audiovisual broadcasters. For example, it does not specify whether a website that offers written content is required to obtain a permit from the council, or whether another permit is required if it involves video content or live streaming.
The status of a broadcaster after it has obtained a license from the SMRC is another point that lacks clarity for Khair. Namely, it remains unclear whether a broadcaster would be required to obtain another license in order to create a website to re-broadcast its programming or for promotional purposes.
Khair attributes these issues to a failure on the part of legislators who drafted the bill to understand how websites work, or their general aversion to technology.
Samir, the political systems and constitutional law expert, adds that the law neglects to specify a mechanism for existing websites to register, effectively granting the regulatory council unchecked powers over them. Article 42, he says, does address newspapers that existed before the issuance of the law and includes the requirements they have to meet to obtain a license, but it neglects to set forth provisions for their websites.
But website regulations are not the only cause for concern. According to Samir, Article 19 poses one of the law's greater dangers. Under this newly-introduced clause, the Law on Regulating the Press and Media and the SMRC would apply to citizens who do not work in the press or media. That would be the equivalent of the Doctors Syndicate law applying to non-doctors, Samir says.
The first article in the bill stipulates that its provisions "shall apply to all press and media organizations, institutions and outlets, and websites in accordance with the attached law, with the exception of personal websites, outlets and [profiles]." However, Article 19 states the following: "Notwithstanding the provisions of the first of the introductory articles of this law, any personal website, personal blog or personal [profile] with 5,000 or more followers shall comply with the provisions of this article. Without prejudice to the legal liability resulting from the violation of the provisions of this article, the supreme council must take the appropriate action regarding the violation, and to that end may suspend or block the website, blog or [profile] alluded to."
Samir explains that, upon the law's ratification, this clause would authorize the SMRC to require those who have personal profiles on any social media platform to comply with the regulations and subject them to the penalties stipulated in it, provided that they have at least 5,000 followers. This means that the bill would apply to those known as "social influencers," regardless of their profession or capacity. According to Samir, the SMRC would have the power to monitor the content they post and take legal action, including blocking their profiles or suspending them.
As such, Samir contends, the law gives the council powers that go beyond regulating the media, and instead grants it jurisdiction over the general public.
According to Samir, a more suitable approach would be to dedicate another piece of legislation to regulate the use of the cyberspace and online content of personal accounts that would grant jurisdiction to the judiciary, not the SMRC.
Khair, the director of the Support for Information Technology Center NGO, shares Samir's sentiment. He describes Article 19 of the bill as resembling the infamous protest law — that outlaws public gatherings — and applies it to social media users. Khair argues that the article infringes on the personal freedom of citizens by disenfranchising their right to communicate and to access information.
The law also contravenes the Constitution more than once, according to Khair. A glaring example is that it allows for remand detention for publishing-related offenses. Furthermore, ill-defined offenses, such as the "incitement of violence, discrimination between citizens, and the like" are punishable by imprisonment in the law, says Khair.
What do journalists think of the new laws?
Abdel Qader, the MCAC secretary, argues that the unified bill was split up after all competent entities took part in the drafting process. The committee did in fact consult several bodies in the review stage, including the Journalists Syndicate, NBA, Media Professionals Syndicate and Media Chamber, in addition to several other bodies, some of which are not required by the constitution to be consulted.
MCAC released a report to outline the measures it had taken prior to putting the old bill up for discussion. According to the report, the legislature addressed nine entities, requesting their notes on the bill and their relevant recommendations: "the Supreme Media Regulatory Council, National Press Authority, National Broadcasting Authority, National Telecom Regulatory Authority, Journalists Syndicate, Media Professionals Syndicate, Media Chamber, Egyptian Competition Authority and the Justice Ministry's legislative sector."
All nine entities responded, detailing the articles that they requested be amended. The only memorandum that was acquiesced to in its entirety by the committee was that by the Justice Ministry's legislative sector. The ministry had requested the amendment of four articles pertaining to: 1) the prohibition of simultaneously owning a daily newspaper and being a shareholder in another; 2) the requirements that must be met by the owners of broadcasters in order to operate legally; 3) the exemption of state-owned broadcasting institutions from the capital requirement for the establishment of television channels or other [outlets]; and 4) a prohibition against the same company owning more than seven television channels. The ministry's views on these provisions was in line with that of the MCAC.
In the report, the committee stated that it found the ministry's opinion convincing, took a favorable view of it and complied accordingly. The Journalists Syndicate, on the other hand, demanded that 16 articles in the law be amended, a request that "the committee opted not to acquiesce to."
Meanwhile, the new legislation was submitted to the State Council's Legislative and Fatwa Committee for review last month. In its findings, issued on July 2, the State Council stated that it found a number of articles to be in violation of the Constitution.
A deputy to the head of the State Council, who spoke to Mada Masr on condition of anonymity, says that the concept behind the three new bills is not so much about regulating press practices as much as it is about consolidating the status quo — one in which journalists and media professionals are regularly harassed and imprisoned — through the use of vague terms like "national security requirements," "instigating legal violations," "the promotion of racism," "publishing or broadcasting with proven malice aforethought," "discriminating between citizens," and "blasphemy against Abrahamic religions or religious beliefs." In effect, the legislation allows authorities to ban journalists from practicing their profession, the judge adds.
The judge argues that Parliament should have included provisions to create new prosecutorial divisions and courts specialized in publishing, press, media and opinion-related cases, given that there are other specialized courts, such as economic courts. These bodies would be composed of judges and prosecutors who are familiar with the limits of freedom of speech and the difference between legitimate expressions of opinion and incitement, he asserts. As such, rulings against journalists, media professionals, writers, literary authors and poets would not be issued according to a biased interpretations of loose legal language.
What will happen to the existing regulatory bodies?
The most significant implication of the three bills coming into effect, according to MP Osman, will be the dissolution of the existing SMRC, NPA and NBA through the repeal of the law by which these bodies were created, and the recomposition of these regulatory entities. The fourth article of the Law on Regulating the Press and Media and the SMRC provides for the repeal of the Press and Media Regulators Law 92/2016 and the Press Regulation Law 96/1996.
After three three regulatory bodies are dissolved and then reformed by presidential decree, the competent entities outlined in the law will then be required to nominate new members. However, Osama notes that there are no provisions precluding current members and chairpersons of these regulatory bodies from being appointed to the new ones.
According to the final text of the legislation passed on Monday, once the laws come into effect, the three existing regulatory bodies will continue functioning until the new bodies have been formed.
-- Sent from my Linux system.
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