The following analysis is part of a series of recent published reviews of individual draft laws on civil liberties in Iraq undertaken by NCCI (links below[i]). A comprehensive long-form report on the interlinking security and legal mechanisms of deteriorating civil liberties in Iraq, with a focus on Freedom of Expression, will be released in the coming month.

 

 

 

A Critical Moment

 

In the past two years, five new pieces of problematic legislation have been proposed that regard civil liberties, and most notably restrict freedom of expression. These laws will define some of the most fundamental frameworks protecting civil liberties in Iraq.[ii] Yet they reference and entrench weaknesses of pre-existent illiberal legislation dating from the Ba’athist administration (such as the Penal Code of 1969), and the Coalition Provisional Authority (such as Order No. 14 and No. 18 of 2003). They also suffer from new and different clauses that are inconsistent with Iraq’s constitutional and international legal obligations. One, the Journalists’ Rights Law of 2011, has already been passed. Iraq’s Informatics (i.e. Information Technology) Crimes Draft Law regarding internet use is perhaps the weakest of all five. It is also of particular concern given that it should stand for a vote by the Iraqi Parliament in mid-2012.

 

 

 

Obligations under the Constitution and ICCPR

 

The Iraqi Constitution enshrines the freedom of “assembly and peacefully protest”, and the “freedom of expression”, including “freedom of the press, printing, advertisement, media and publication”, unless threatening the “public order and morality” (Article 38).[iii] Likewise, Iraq is a signatory to the International Covenant on Civil and Political Rights of 1966 (ICCPR). Article 19.2 of the ICCPR entitles “everyone the freedom of expression” including “the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” The text further specifies that any restriction on this right, the “freedom of peacefully assembly” (Article 21) or “freedom of association” (Article 22.1), must be strictly necessary to preserve the interests of “national security or public safety, public order, the protection of public health or morals” (Articles 19.3.B, 21, 22) or in the case of association and assembly “the protection of the rights and freedoms of others” (Article 21, 22.2).[iv]

 

In order to comply with these legal obligations, new legislation by the Iraqi legislature should clearly demonstrate that limitations on freedoms are in the defense of the public against a serious, likely and imminent danger to public safety. Anything less constitutes a disproportionate limitation of and/or sanction upon the freedoms guaranteed by Iraq’s Constitution and legal obligations under international agreements to which it is signatory.

 

 

Iraq’s Informatics Crimes Draft Law: Review of Articles

 

Iraq’s Informatics Crimes Draft Law regarding internet providers and users passed reading by the Council of Ministers in 2011. It now awaits only reading and vote in the Parliament to become binding legislation.

Overly broad definition of defamation threatens basic valid and necessary criticism of policy makers and policy. According to the draft law, persons who use the internet “to attribute terms, images, sounds or any other means that include … insult to the others” are subject to imprisonment of up to two years and a fine of 3 – 5 million Iraqi Dinars (Article 22.3). Life imprisonment is the punishment for those who use the internet to “harm the reputation of the country” (Article 6.1). Life imprisonment is also the sanction for “publishing or broadcasting misleading events for the purpose of weakening confidence in the electronic financial system, electronic commercial or financial documents, or similar things, or damaging … financial confidence in the state” (Article 6.3). Defamation should be a civil issue. Even where defamation is a civil tort, the State should be excluded altogether from the entities whose “reputations” may be its object, since the need to criticize the state is such an important corner-stone to a healthy democracy. The way they are currently written, Articles 6.1-3 thus can effectively prohibit any mere discussion, much less criticism, of the economic, financial and administrative systems of the state. Convincing, fact-based, critical discussion by its very nature weakens confidence in the current system, at least in the short run, for the purpose of promoting reform thereof. Likewise Article 22.3 via its over-broad understanding of “insult” could cover for example such innocuous materials as political cartoons of authorities or sardonic articles regarding their actions.

 

Like the defamation clauses, the definitions of ‘security’ related technology crimes too suffer from excessive scope. This in turn threatens the space for reporting on and critical re-evaluation of state policy in the security field. Any penalization of promotion or discussion of ideas, even regarding national security must be qualified by standards of the seriousness, imminence, and likelihood of the threat they pose to public security on the ground. Many articles in the law do not. “Setting up or managing a website with intent to promote or facilitate the implementation of ideas which are disruptive to public order” (Article 4.1), “publishing information regarding the preparation and implementation of flammable or explosive devices” (Article 4.3) or “publishing information about using mind altering substances (Article 5.2) are all unqualified. The equivalent of Articles 4.1-2 has been used against journalists reporting the incidence of a terrorist attack for example. This legislation would likewise allow legal harassment of a journalist simply reporting on a drug use problem in a particular area should an excuse to penalize a journalistic critic of a politician be desired. Indeed in the draft internet law these overly-vaguely defined acts are not only criminalized but also punishable with extremely harsh sanctions. Punitive sanctions provided for by the law include life imprisonment and between 25 and 50 million Iraqi Dinars (between US$16,000 and US$32,000, more than 10 times the average Iraqi’s income). The penalty is thus grossly disproportionate to the threat.

 

The internet draft law also lacks other necessary protections for whistleblowers in both the private and public sectors. Articles 7-9 prohibit the interception of financial data, just as Article 19.1.a prohibits the publication of illegally received materials. These articles should be qualified by a clause permitting such publication if in the public interest. One example might be an anonymous email to a journalist regarding the fraudulent but also private banking activities of a public servant. Currently these varieties of ‘crimes’ in the legislation face perpetrators with fines of up to 10 million Iraqi Dinars and 10 years imprisonment. This constitutes a dangerous deterrent to necessary reporting in the public interest.

 

Meanwhile total access to individuals’ private information by authorities is permitted without any form of due process. For example, “declining to provide information or data to the …administrative authorities” is criminalized, without demanding that authorities provide either a cause or a warrant (Article 18). Article 13 provides similar permissions to “security authorities and bodies responsible for issuing licenses.” This would allow for example, any state authority to demand news media reveal their sources without even providing a reason therefore.

 

According to Article 29 in a legal court proceeding “the court may decide to confiscate or damage the tools, equipment, software and devices used in the commission of the crimes stipulated in this act”. The article thus denies basic principles of due process by allowing the destruction of evidence before a judgment is passed and/or and the appeal process exhausted.

 

The law’s provisions mean that many important forms of new media could simply be banned altogether from use in Iraq. Since the law fails to differentiate between users and service providers for example, Youtube or Facebook could conceivably be shut down if one of their users posted once about an unapproved generic drug. Likewise a media outlet can be shut down as a result of a mistake of one blogger, encouraging self-censorship among internet users and administers alike.

 

 

 

Conclusions

 

The Draft Law on Information Technology Crimes should be revised to clearly demonstrate the principle that burden be always on the State to show that limitations on freedoms are in the defense of the public against a serious, likely and imminent threat. The opportunity for revision exists, as the law awaits final reading in the Parliament in coming weeks. If it is not however, it will become another link in the chain of weak laws with numerous illiberal clauses from the past three administrations of Iraq, viable for use in coming years in the country though incompliant with Iraq’s most basic legal obligations under its current constitution and international obligations.