Iraq’s new draft Law on Combating Cybercrimes still contains problematic provisions restricting fundamental freedoms

December 1, 2020

On Monday November 23, 2020, Iraq’s parliament completed the second reading of a new draft Law on Combating Cybercrimes. The draft, which is a revised version of an earlier controversial draft Law on Information Technology Crimes, criminalises several overly-broad and vaguely defined acts, which, if adopted, would impose greater restrictions on Iraqi citizens’ right to the freedom of opinion and expression online.

Background

First introduced in 2011, the draft law was requested to be withdrawn in 2013 by the Parliamentary Committee for Media and Culture after facing pressure from individuals and civil society organisations who raised concern over the many restrictive provisions contained in the law. Because the parliament never officially endorsed the withdrawal decision, the text was reintroduced with slight amendments in January 2019.

In response to the reintroduction of the draft law, several human rights organisations, including MENA Rights Group, called on the Iraqi Council of Representatives to withdraw the law, citing deep concerns over the proposed restrictions on individuals’ rights to the freedom of opinion and expression, including the freedom to “seek, receive and impart information” and the right to participation in public affairs in Iraq.

In February 2019, MENA Rights Group appealed to the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, requesting that the Special Rapporteur call on the Iraqi authorities to withdraw the draft Cybercrime Law.

Nevertheless, after the Iraqi parliament completed a first reading of the draft legislation in January 2019, it was further revised and reintroduced in November 2020. The draft law’s reintroduction comes months after Iraq witnessed nationwide protests against corruption, deteriorating economic conditions and sectarianism. In the wake of these protests, activists, journalists and protestors have been subjected to arrests, acts of intimidation and harassment for simply exercising their right to the freedom of opinion and expression. According to a report by Human Rights Watch, the Iraqi authorities are continuing to rely on vaguely worded laws “that allow prosecutors to bring criminal charges for opinions they object to,” in an attempt to silence journalists and dissenting voices. According to the same report, since protests erupted in October 2019, more than a dozen Iraqi radio and TV stations have been ordered to close down by the authorities.

Restrictions on the right to freedom of opinion and expression

The revised draft Law, reintroduced in November 2020, is slightly more aligned with international standards, such as the Budapest Cybercrime Convention, than its earlier versions. Yet, the criminalisation of other overly-broad acts remains inscribed within the draft legislation.

Article 5(3), for example, criminalises entering a website or using a computer “with the intention of obtaining data or information affecting the national security or the national economy of the country,” and subjects such acts to punishment by imprisonment for a maximum of ten years in addition to fines. Article 8(4) further states that “whoever uses the internet, a computer device or its equivalent, with the intention of violating religious, family or social principles and values shall be punished with imprisonment for a period of no less than seven years and not exceeding ten years, and a fine of not less than 10 million Iraqi dinars (approx. 8380 USD) and not exceeding 15 million Iraqi dinars (approx. 12570 USD).”

The criminalisation of vague and imprecise acts, subject to broad interpretation by the judge, does not meet the criteria of legal clarity and predictability and stands in clear contradiction to article 38(1) of the Iraqi Constitution, which affirms that the state shall guarantee “freedom of expression using all means.” We remain deeply concerned about these provisions, which provide the authorities with excessive discretion, enabling them to stifle the right to freedom of expression online.

Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR) states that the right to freedom of expression may only be restricted if limitations are provided by law and necessary for the protection of “the rights or reputations of others” or for the protection of “national security or of public order (ordre public), or of public health or morals,” which is not the case in the aforementioned articles.

In fact, individuals who are merely criticising the government could face prosecution under these provisions. In this regard, we recall the Human Rights Committee’s General Comment 34, which states that:

"a norm, to be characterized as a 'law', must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not."

The right to seek, receive and impart information and ideas

We are additionally concerned that the revised draft law contains provisions that violate the right to “seek, receive and impart information and ideas,” protected under article 19 (2) of the ICCPR, providing greater restrictions on the work of peaceful Iraqi activists, human rights defenders and journalists.

Article 5(1) of the draft law states that “anyone who listens to any messages through the internet, computer devices or their equivalent, or takes it or intercepts it without a permit to do so from the competent authority or the owner,” shall be sentenced to prison “for a period of not less than one year and not more than two years,” in addition to fines. Moreover, article 8(3) imposes a prison sentence of a maximum of ten years against anyone who “uses the internet or a computer device and the like, including mobile phones, to violate the sanctity of individuals’ private or family life by taking pictures or publishing news or audio or video recordings related to them, even if they are true.” According to the draft text, such acts are subject to imprisonment for “a period of not less than two years and not exceeding five years,” in addition to fines.

The inclusion of such provisions would lead to further restrictions on the work of Iraqi activists and journalists and would criminalise, for example, criticism of politicians and government officials under the pretext of “the sanctity of one’s private or family life.” Under the draft law, individuals may be subjected to prison sentences for merely seeking or sharing information that is critical of governmental or public officials. We are concerned that this provision could allow the Iraqi government to use privacy as an excuse not to release information of public interest into the public domain.

As such, we remain deeply concerned about the restrictions imposed by the revised draft law and call on the Iraqi authorities to withdraw or amend the draft legislation and bring it in line with international standards. The bill in its current state would further restrict the exercise of freedom of expression in Iraq, which has deteriorated in the last years. Since the start of the anti-government protests in October 2019, the dangers faced by journalists and media workers in Iraq have increased. Reporters are often exposed to the risk of being threatened with arrest or facing criminal charges. Accordingly, Iraq has been ranked 162 out of 180 in Reporters Without Borders’ 2020 Press Freedom Index.

Though, at the time of writing, the draft law has been suspended, it has not been withdrawn and can thus be reintroduced at any time.

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