Communication Law and Policy in The Middle East

22 countries belong to the Arab League, established in 1945. Most of those countries were ruled by the Ottomans, British, French, or Italians. Thus, Arab countries have largely adopted legislation based mostly on the legal systems of their former colonial rulers. Egypt, however, has a longer and more established legal tradition that dates back to the Egyptian constitution of 1923, while some Gulf nations that were British “protectorates” until 1971 have a less tested or developed legal tradition. The normative sources regulating speech rights in Israel consist of a number of British mandatory statutes incorporated into Israeli law in 1948 from the Law and Administration Ordinance, as well as Israeli legislation enacted by the Knesset after the establishment of the state.

Licensing and Minimum Capital Requirements

All Arab countries with the exception of Iraq still require licensing before publication. In almost all countries, minimum capitalization is required. Sometimes, licensing involves obtaining a certificate of good conduct from the ministry of interior or the intelligence services.

In Israel, the 1933 ordinance based on British law, which mandates licensing of publications, the approval of the credentials of journalists, and the closure of publications, is still in force. Although Israel kept the British Defense (Emergency) 1945 Regulations on the statute books, the government undertook not to impose them on the Hebrew press, signing an agreement on military censorship with Israeli editors in 1949 and renewing it several times. A “censorship tribunal” resolves disputes between the chief censor and the Israeli press, which receives general guidelines on the topics the government considers sensitive. Ever since a 1989 Israeli High Court of Justice ruling that the censor can cancel an article only if there is “a near certainty of tangible harm to the state’s security,” censorship of materials for political expediency has been reduced.

The latest (1996) agreement with the editors was amended to allow all media, not just publications that belong to the editors committee, to file petitions against the censor in the High Court of Justice. The censor cannot appeal decisions by the committee. The agreement also established a censorship appeals committee, headed by a retired Supreme Court Justice. Schmidt (2006) notes that although Jews and Palestinian Arabs who are Israeli citizens “are formally equal before the law, the basic approach of using different normative and interpretative standards on both groups underlies Israel’s legal, judicial, and socio-political system as a whole and may be described as systematic.”

Access to Information

Israel enacted a freedom of information law in 1998. The law allows any citizen or resident to access records held by government offices, local councils, and government-owned corporations. Requests for information must be processed within 30 days. A court can review decisions to withhold information. Jordan has approved an access to information law in 2007, but the law was criticized for not having an independent body responsible for overseeing compliance.

Journalists who publish information on corruption are often punished for obtaining documents on which they based their investigations. Algerian journalist Bahir Arrabi was imprisoned in 2006 after publishing his investigative report on a charitable institution whose boss registered a piece of land in his own name instead of the name of the organization he was heading. The court ruled against him for obtaining documents that did not belong to him. On the other hand, the Yemeni parliament formed an 11-member anti-corruption authority to apply the Yemeni Anti-Corruption Law no. 39 (2006). Such legislation will make it easier for journalists to cover corruption. The Iraqi interior ministry on May 13, 2007, limited journalists’ access to scenes of bomb attacks, thus restricting their ability to report independently.

Defamation and Insult Laws

Insult laws have their origin in the concept of “lèse-majesté” in the 1881 French law. Henderson (2005) arrived at a typology to determine the categories of critical statements prohibited under defamation and insult laws in the five countries he examined (Egypt, Jordan, Lebanon, Morocco, and Yemen). He found that the law prohibited statements (1) because of a person, such as the head of state (king, president) and his family, public officials, foreign heads of state, etc.; (2) because of an institution, such as the parliament, the courts, public agencies, religious authorities, etc.; and (3) because of a topic, such as public morality, nation’s reputation, or relations with a foreign state or territory. Additionally, many laws include vaguely defined offenses such as inflammatory propaganda or malicious information.

The right of reply is found in the press laws of Bahrain, Egypt, Jordan, Lebanon, Libya, Morocco, Palestine, Syria, Tunisia, and Yemen among others. Israeli defamation law does not distinguish between defamation of private individuals and public officials or figures. It provides for imprisonment for six months for insulting “a public servant or a judge or officer of a religious court or a member of a commission of inquiry under the Commissions of Inquiry Law while engaged in the discharge of his duties.” No journalists were prosecuted under the criminal libel law. However, Amos Keinan, a columnist for Israel’s Yediot Ahronot, was convicted of contempt of court in 1995, and fined US$670 for criticizing Israeli courts for imposing allegedly lenient sentences on Israelis convicted of attacking Palestinians in 1988 and 1989.

Legislation After the September 11 Terrorist Attacks

September 11 has led Jordan, Egypt, Tunisia, and Bahrain to promulgate new press laws to fight “terrorism.” The Jordanian government on October 8, 2001, amended the penal code and enacted a new anti-terrorist law.

The new anti-terrorist law defines terrorism in vague terms and increases the scope of the death penalty. It stipulates that “anyone who commits an act which undermines the political regime in Jordan or incites others to do so, and anyone who acts individually or collectively to change the economic, social, or fundamental situation of the society” can be sentenced to hard labor. Because of the way some of these laws have been applied, some observers criticized the laws as attempts not to combat terrorism but to muzzle internal dissent.

The Effect of Religion on Media Legislation

As a result of the level of secularism versus Islamic observance, Arab countries use Sharia law sparingly or extensively. The Syrian constitution is the most secular because the founder of the Baath party in the 1940s, Michel Aflak, was a secular Christian. In contrast, Saudi Arabia’s Basic Rules for Governance serve as its constitution: Article 1 states that Islam is its religion; God’s Book and the Sunnah of His Prophet are its constitution.

Israel has no constitution and no bill of rights: the religious parties objected to any constitution other than the Torah, and the military establishment realized that much of the Israeli and British mandatory emergency legislation would never stand the test of judicial review. Israel hopes, however, that the basic laws it has enacted will eventually serve as its constitution.

After the publication of the Danish cartoons on September 30, 2005, and the republication of some of them in Jordanian weeklies, al-Mehwar and Shihan, two editors-in-chief were first charged with blasphemy in violation of the Jordanian penal code. After being released on bail, they were rearrested and detained for a week on charges of violating the Press and Publication Law, which prohibits “publishing anything that conflicts with the . . . values of the Arab and Islamic nation” and “publishing anything that might instigate violence, prejudice, bigotry or . . . which invites racism, sectarianism, or provincialism.”

The editors of the Algerian weeklies Ar-risala and As-safir were imprisoned for a month for reprinting the cartoons, their imprisonment based on the criminal code allowing for between threeand five-year imprisonment for “anyone offending the Prophet or emissaries of God or belittling the doctrine and principles of Islam”.

Internet in The Middle East

In the mid-1990s, when Internet use was reserved for the well-to-do, most Arab governments did not attempt to censor it. As Internet use became common, some governments set up surveillance units. Only Saudi Arabia and Tunisia, however, have Internet-specific legislation.

In 2007, 53 percent of the citizens of the United Arab Emirates (UAE) were reported to use the Internet regularly, according to the World Fact Book of the Central Intelligence Agency. Israel comes second at 50 percent, followed by Kuwait (25 percent), Bahrain, (22), and Qatar (20). The rest of the Arab countries range between 10 and 15 percent. Iraq is in the last position at 0.1 percent.

Local Internet service providers (ISPs) enable governments to block certain websites. Gulf nations are most concerned about pornography, while Algeria, Egypt, Jordan, Libya, Morocco, Syria, and Tunisia concentrate mostly on human rights, political, and religious websites. Countries that have no Internet-specific legislation define communication in their press laws to include any means of dissemination, including digital. Thus, the most recent attempt to try a Bahraini blogger for defamation of a government official was to be conducted under both the penal code and the Press and Publications Law 47/2002 before the official dropped the suit after mediation.

Tunisia has the region’s most detailed Internet legislation issued in a decree in March 1997, which explicitly extended the press law to cover the Internet. Each ISP must submit, on a monthly basis, a list of its Internet subscribers to the “public operator” (the state-run ATI); if the ISP stops providing services, it must turn over to the public operator a complete set of its archives as well as the means to read them. Furthermore, the “director” is to maintain “constant oversight” of the content on the ISP’s servers. The Internet decree also bars encryption without prior approval from the authorities. The contract presented to institutional clients by the ATI restricts their right to seek and access information online only to “scientific, technological, or commercial purposes under penalty of cancellation of the contract.”

Saudi Arabia’s 2001 Rules for Regulating the Internet forbid the publication of “anything contravening a fundamental principle or legislation, or infringing the sanctity of Islam and its benevolent Shari’ah, or breaching public decency,” and “anything contrary to the state or its system.” Censorship is undertaken by service providers, who, “record the time spent, addresses accessed or to which or through which access was attempted, and the size and type of files copied, whenever possible or necessary.” Saudis require the approval of the Ministry of Information “for setting up of media-type websites.” The Jordanian government has submitted a draft law in 2007 that regulates Internet broadcasting.

Although the Egyptian constitution stipulates that “no crime and no penalty may be awarded out of law, and no penalty may be awarded to the violations committed before affecting the respective law,” Egypt criminalizes some online activities, although there are no legal stipulations that criminalize them. Egypt jailed three bloggers in 2006.

Censorship of Internet content in Israel starts in 2008 after a law, unanimously approved by the ministerial committee on legislation, is brought to the Knesset for final approval. The proposed law requires Internet ISP and cellular phone providers to only allow access to Internet sites featuring pornography, gambling, and violence to users over 18 who specifically sign up for them and identify themselves as adults.

Positive Developments in the Arab Press

Kuwait is emerging as the freest country because of recent court rulings favoring freedom of the press. The Press and Publications Law of 2006 permits any Kuwaiti to engage in publishing after receiving a permit and allows for court review of rejected applications. It forbids the publication of material that criticizes the constitution or the prince, or calls for the overthrow of the regime. Insulting the prince, however, is no longer punishable by a jail term but by a steep fine.

Arab journalists are becoming increasingly assertive. The Yemeni journalists syndicate rejected a draft press law prepared by the government without consultation in 2005, leading to its suspension in 2007 and the initiation of consultations with civil society and the press syndicate on a new draft press law. Protests by journalists in Egypt and Jordan in 2007 also got press laws renegotiated. The Arab Journalists Union has crafted a progressive media law as a model; one that Arab governments have not yet adopted. The law ensures that the broad promises of freedom written into various constitutions are not contradicted in press laws or penal codes, forbids referring journalists to the State Security Court or imprisoning them, and insists that Arab countries adhere to the international conventions they had ratified.

Bahrain’s most famous blogger cited on his website the Bahraini constitutional protections of free speech under Article 19 of the Universal Declaration of Human Rights “which the Bahraini Government is a signatory,” as he put it. The blogger, who writes in English, has published a photograph of the order to block his website, “Mahmoud’s Den,” signed by what he called “the minister of disinformation.” He also published a list of other blocked Bahraini sites coupled with instructions for unblocking them.

The Internet used to be the refuge for strict Islamists who issue fatwas (religious rulings) against Muslims with a different interpretation of Islam, and it still is. Today, however, the Internet is also the home of Muslims who take religious zealots to task by making fun of them, as happened in 2007 when sexually explicit cartoons ridiculed a fatwa on the separation of the sexes. The strange fatwa decreed that males and females may work together alone in offices if the female nurses the male five times, thus making him qualify as a brother. As a result of the uproar in the press and on the Internet, Al Azhar University of Egypt has since suspended an Al Azhar professor who issued the ruling, but the comic pornographic cartoons depicting what would happen in the workplace if the fatwa was applied were making the rounds on the Internet throughout the summer of 2007.

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