20 February 2019
MENA Rights Group is concerned over the reintroduction of a controversial draft of the Law on Information Technology Crimes which had been withdrawn in 2013 under pressure from civil society organisations.
On January 12, 2019, the Iraqi Council of Representatives announced that it had completed its first reading of the draft cybercrime law. The published text is dated from 2011, when it was first brought before the parliament for discussion before being withdrawn two years later. However, although the head of the Council formally approved the request of the Parliamentary Committee for Media and Culture to withdraw the law on February 6, 2013, the parliament never voted to endorse the decision.
As a result, the draft law was reintroduced in 2019: although the text was amended slightly, core issues previously denounced by civil society remain. The parliament must complete a second reading of the law before a vote can take place; however, there is no information as to when a second reading would take place.
The proposed draft legislation punishes overly-broad and vaguely defined acts such as harming “the reputation of the country” or its “independence” with severe penalties, ranging from heavy fines to life in prison. In doing so, the draft text contravenes article 38(1) of the Iraqi Constitution, according to which the state shall guarantee “freedom of expression using all means”. The draft law also fails to meet the standards of the International Covenant on Civil and Political Rights (ICCPR), to which Iraq has been party since 1971.
MENA Rights Group argues that should the Cybercrime Law be enacted, it would establish a climate of self-censorship among internet users. The law could also be used against peaceful dissidents, political opponents, human rights defenders, journalists and activists, who are already facing restrictions.
Concerned by these restrictions, on February 15, 2019, MENA Rights Group appealed to the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Providing an analysis of the draft law, MENA Rights Group requested that the Special Rapporteur call on the Iraqi authorities to withdraw the draft Cybercrime Law.
Acts of free speech punishable with life imprisonment
MENA Rights Group is concerned over numerous provisions contained in the draft law that are excessively vague and imprecise, as they rely on subjective and unclear terms, which do not meet the criteria of legal clarity and predictability.
In particular, articles 3, 4 and 6 punish acts that fall under the right to freedom of opinion and expression with life imprisonment and a fine ranging from 25 to 50 million Iraqi dinars (approx. 21,000 to 42,000 USD).
Article 3 sanctions anyone who uses computer devices or an information network for the purpose of “undermining the independence, the integrity and safety of the country, or its supreme economic, political, military, or security interests” or “[e]ngaging, negotiating, promoting, contracting or dealing with a hostile entity in any way with the intention of destabilising security and public order or endangering the country”.
By the same token, article 6 punishes “provoking sectarian strife, disturbing the security and public order, or harming the reputation of the country”.
Lastly, article 4 sanctions anyone who uses a computer or the Internet for the purpose of “carrying out terrorist operations” or “promoting terrorist acts and its ideas”. It is worth highlighting that article 1 of the Anti-Terrorism Law No. 13 of 2005 defines terrorism in overly broad terms as an act committed “with the aim to disturb the peace, stability, and national unity or to bring about horror and fear among people and to create chaos to achieve terrorist goals”.
As a result, individuals who are merely criticising the government could face prosecution under these provisions. In this regard, MENA Rights Group recalls that the Human Rights Committee stated in its General Comment No. 34 on the right to freedom of expression that “[t]he penalization of a media outlet, publishers or journalist solely for being critical of the government or the political social system espoused by the government can never be considered to be a necessary restriction of freedom of expression”.
Acts violating “religious, moral, family or social values” or breaching “public decency and morals”
Furthermore, the Cybercrime Law also imposes a penalty of at least a year in prison for anyone “who violates any religious, moral, family or social principles or values or privacy of private life through an information network or computer devices in any way” (article 21(3)). Article 22 further punishes with “temporary imprisonment” anyone who “creates, manages or assists the establishment of a website on the internet to promote or encourage immorality and debauchery or any programs, information, images or videos which breach public decency and morals.”
Such wording is very broad and would provide excessive discretion to the authorities, allowing them to stifle the right to freedom of expression.
Imprisonment for defamation and libel
Article 22 also sanctions with a maximum of two years in prison anyone found guilty of using computers or the Internet to “attribute to someone else words, images, voices or any other means which includes defamation and libel.”
MENA Rights Group is concerned that this provision is contrary to international human rights law and recalls that the Human Rights Committee has established that criminal sanctions for libel and defamation are not proportionate with the effective exercise of the right to freedom of expression.
Undermining the activities of whistleblowers
In addition, certain provisions violate the right to privacy and information, and can undermine the activities of whistleblowers.
Article 18 of the law punishes anyone who “refuses to provide electronic information or data to the judicial or security authorities” with imprisonment, while article 13 sanctions anyone who “refuses to provide the security authorities and the competent authorities granting licenses with all requested reports, information, statistics, records, electronic trading and monetary currencies, software or any other electronic output as long as relevant to his activities, and which does not violate the rights of intellectual property” with a fine.
Third party liability
Lastly, article 23 punishes with a prison sentence of between one and two years anyone who “deliberately produces, sells, imports or distributes any devices, tools, computer software, hardware, passwords or login information which leads to committing one of the crimes mentioned in this law.”
MENA Rights Group is concerned that this provision imposes third party liability in a manner that is contrary to the right to freedom of expression.