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Jordan need not reinvent the wheel when passing judgement on cybercrime law

Dec 15,2018 - Last updated at Dec 15,2018

The ongoing national debate and controversy about how to deal with slander, defamation, incitement to religious, racial or ethnic hatred and national origin discrimination in the framework of the amended cybercrime law calls for yet another revisit before Parliament can properly act on the amendments introduced by the government.

From what I was able to read about the array of complex issues contained in the legislation, whether of legal or policy nature, I respectfully submit that the government, including Parliament, should have had another, and a deeper, look into this issue before venturing to take a final position on the contentious issues covered by the amended legislation.

There are two sets of major issues in this matter, one legal and the other of a policy nature. From a strictly legal point of view, it must be said right at the outset that the broad issues covered by the law are of equal legal importance. To put things in proper perspective, it must be noted right at the start that "defamation" in its libel or slander forms, means injuring a person's character, fame or reputation by a false or malicious statement or utterance. This category of wrongs belongs to the law of "tort", incurring civil liability that is punishable by compensation, not imprisonment. A rule of thumb is that these violations do not incur a criminal liability.

The Human Rights Council, the highest UN human rights body, had a deep look at some of the issues covered by the law in question, when it had examined in November the third periodic report of Jordan under the Universal Periodic Review in Geneva. All branches of government should take a deep look at the comments, observations and recommendations of this UN human rights organ before proceeding to adopt the new amended law. Jordan is treaty obligated to take comments and recommendations of UN human rights bodies seriously, in a non-selective manner, and to endorse what they recommend, too. Jordan cannot pick and choose what it likes or rejects from the list of UN recommendations.

Secondly, Jordan must not try to reinvent the wheel when passing judgement on the main features of the new law. There is existing binding language in several UN human treaty conventions, covering the same kinds of issues covered by the new legislation, especially the ones most extensively covered by the International Covenant on Civil and Political Rights (ICCPR). The honourable members of Parliament are, therefore, respectfully invited to have a close look at what this covenant says about the kinds of issues that the new law aims to cover.

Starting with Article 18 paragraph 1 thereof, it stipulates that "everyone shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to have or adopt a religion or belief of his [her] choice, and the freedom, either individually or in community with others and in public or private, to manifest his [her] religion or belief in worship, practice and teaching". Article 19 states that "everyone shall have the right to hold opinions without interference". This includes the "right to freedom of expression, including the right to seek, receive and impart information and ideas".

These rights, however, are subject to certain reasonable constraints, including as prescribed in paragraph 3(a) of the same article, which calls for the "respect of the rights or reputations of others", and under paragraph (b), the need to "protect national security or public order [ordre public] or public health or morals". Article 20 continues to prescribe limitations on the rights to freedom of expression, notable by prohibiting "any propaganda for war and any advocacy for national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence".

Admittedly, the language of the ICCPR on these issues is rather broad and open to different interpretation. The UN Human Rights Committee had endeavoured to interpret these paragraphs by adopting "general comments" on them. The jurisprudence of the committee on these paragraphs is accessible and can be obtained by reviewing the commentaries of this particular committee.

Therefore, when, for example, the new language used in the amended legislation stipulates the criminalisation of "spreading rumours or false news” by imprisonment of not less than three months, it leaves open the precise definition of these terms. What does, for example, "rumours" mean that warrants imprisonment under the law. And who shall be the arbiter of whether a certain news item is fake or true or in between! What are the criteria for determining these issues?

That is why getting acquainted with the jurisprudence of human rights bodies on such issues could be not only helpful but also indispensable for the adoption of a carefully drafted legislation on all the issues covered by the amendments introduced to the law on cybercrime.

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