By Lawyers for Justice in Libya
A Guide to Freedom of Expression in Libya has been authored by Lawyers for Justice in Libya thanks to the assistance of International Media Support.
It is intended to provide support for media stakeholders and identify human rights recommendations for the Libyan State. It is available to download here.
LIMITATIONS TO EXPRESSION
The right to freedom of expression is not absolute and under certain exceptional circumstances, detailed in the International and Regional Treaties section below, a state may justifiably introduce limitations to the right.
These may include, for example, introducing legal measures designed to prevent incitement to violence or “hate speech”. This is pertinent in Libya where the media is alleged to be a tool used to propagate violence in the ongoing conflict. However, legal and regulatory responses to address legitimate concerns can become overbroad and subject to abuse by authorities.
Libya’s legal framework contains many provisions that grant the State overly discretionary power to limit expression that is considered as legitimate in international treaties.
For this reason, the measures highlighted below are considered not to be fit for the purpose of tackling expression such as hate speech. As a result, there is an urgent need for the State to amend or repeal existing laws which restrict expression in a manner that is inconsistent with the Constitutional Declaration and Libya’s international human rights obligations.
International and Regional Treaties
The ICCPR provides a narrow set of conditions 14 which all need to be fulfilled for a state to limit expression legitimately. Restrictions must:
– Be stipulated in a law or regulation that meets reasonable standards of clarity and precision.
– Pursue a legitimate aim. Measures must intend to ensure respect for the rights and reputations of others, or the protection of national security, public order, public health or morals.
– Be a necessity, impairing expression as little as possible in pursuit of legitimate aims.
The International Convention on the Elimination of All Forms of Racial Discrimination also obliges Libya to declare illegal, and prohibit, organisations and propaganda activities which promote and incite racial discrimination.
The Constitutional Declaration (2011)
The Constitutional Declaration states that expression will be guaranteed in accordance with the law. It does not, however, explicitly state the need for restrictions to expression to pursue a legitimate aim or necessity as required by international law.
However, the Libyan Supreme Court has ruled that some laws which restrict expression are unconstitutional. In doing so, the Libyan Supreme Court demonstrates that providing for a restrictive measure in law is, in itself, insufficient to form a constitutionally compliant restriction.
The Libyan Supreme Court referenced the need for laws that criminalise expression to be clearly defined to avoid additional acts, not intended by lawmakers, from being decriminalized. This is consistent with the requirement of the ICCPR for laws to meet reasonable standards of clarity and precision.
Beyond the need for specificity for criminal laws, it remains unclear whether other laws that restrict expression are consistent with the Constitutional Declaration. The State’s communications at the international level suggest that some laws have been immediately abrogated due to lack of compliance with the Constitutional Declaration.
One possible inference is that the Constitutional Declaration may only allow restrictions that adhere to Libya’s international human rights obligations.
The Constitutional Declaration does provide guarantees to other rights which may, on occasion, need to be balanced with the right to freedom of expression. These include the right of citizens to a private life; to secrecy of correspondence; and to intellectual property.
The Promotion of Freedom Act (Law 20 of 1991)
The Promotion of Freedom Act sets out ambiguous limitations on the State’s guarantees of free expression. For example, it states that expression “detracting from the people’s authority” is not protected by the law.
As a result, many types of expression that are vital for human dignity and good governance, such as joining political parties, being critical of government activities, or engaging in peaceful protest, potentially lack protection in the Promotion of Freedom Act.
The Promotion of Freedom Act also expressly prohibits forms of expression, including secretly advocating ideas and attempting to impose thoughts through enticement, force, intimidation or fraud.
The prohibition of secretly advocating ideas does not seem to follow a legitimate aim, as required by Libya’s international obligations, and seems to conflict with the protections of sanctity and secrecy of correspondence offered by the Constitutional Declaration.
Limiting expression that seeks to use enticement, force, intimidation or fraud may be more consistent with meeting the required pursuit of a legitimate aim, as outlined in international law. However, the wording of the Promotion of Freedom Act fails to be consistent with the ICCPR’s requirements as it does not provide sufficient legal detail or consider the the necessity of stipulated sanctions.
The Libyan Penal Code Criminalities Various Forms Of Expression In A Manner Which Is Largely Inconsistent With Libya’s International Human Rights Obligations And The Constitutional Declaration.
The Libyan Penal Code (1953)
The Libyan Penal Code criminalises various forms of expression in a manner which is largely inconsistent with Libya’s international human rights obligations and the Constitutional Declaration.
Acts of expression criminalized include those which:
(a) insult public officials, the Libyan nation, or the Libyan flag;
(b) initiate a civil war in the country, fragment national unity or cause discord; aim to overthrow the political, social or economic system of the State; offend or attack religions;
(c) are indecent in nature;
(d) insult a person’s honour; or,
(e) harm or prejudice the February 17 Revolution.
The Libyan Penal Code fails to adhere to legitimate aims and necessity, whilst imposing severe penalties (including the death penalty), meaning its provisions are highly inconsistent with international law and the Constitutional Declaration.
The Publications Act (Law 76 of 1972)
The activities of media within Libya were previously governed by the Publications Act. The Publications Act restricted expression, allowing only lawful publications that were considered to be within “the framework of the principles, values and objectives of society”.
This allowed the state to control Libya’s media tightly. The Publications Act was, in turn, heavily criticised by the United Nations Human Rights Committee. Although Libya stated its intention to amend the Publications Act and superficially loosened some of its control over publication rights, the law remains largely unchanged.
Independent media expanded rapidly after the 2011 uprising and the Publications Act’s incompatibility with the Constitutional Declaration has led many, including the State, to declare the act as abrogated. However, media authorities have recently sought to issue orders and decrees, including the banning of publications, on the basis of the Publications Act. The interpretation of such authorities is likely to be unlawful, but the consequences are real and dangerous to free expression.
National Transitional Council (NTC) Decree 15 of 2012
The decree placed a blanket ban on media discussion of religious opinions (fatwas) issued by the national council of Islamic Jurisprudence (Dar Al-Iftaa). The decree remains untested in relation to its compliance with the Constitutional Declaration and has largely been ignored by media organisations. There remains a danger that it will be used in the future to suppress legitimate debate.
General National Congress (GNC) Decree 5 of 2014
The decree sought to prevent television and radio stations from broadcasting if they featured viewpoints that were considered “hostile to the February 17 Revolution and whose purpose is the destablisation of the country or the creation of divisions amongst Libyans”
Media Authorities Have Recently Sought To Issue Orders And Decrees, Including The Banning Of Publications, On The Basis Of The Publications Act.
House of Representatives “The Law on Combatting Terrorism” Law 3 of 2014 46
The Law on Combatting Terrorism criminalises “terrorist acts” which include expression that “disrupts public order or endangers peace of the society”. The law also criminalises the “disclosure of information directly or indirectly for the benefit of terrorist organisation or people that have ties to terrorist organisations”.
The law also makes it illegal to engage in advertising, promoting or misinforming anyone on committed terrorist acts in a manner which is publicly accessible. The overly broad definition of terrorist acts leads to concern that the law could be used illegitimately to restrict freedom of expression, including participation in peaceful protests. In addition, the disproportionate punishments, including life imprisonment for some acts, may exceed international requirements for necessity.
The law may, as a result, fail to adhere to the standard required by the Constitutional Declaration and Libya’s international human rights obligations. In addition, the legitimacy of the House of Representatives, whist internationally recognised, remains the subject of contentious debate. As result, many would consider the Law on Combatting Terrorism to be void and unenforceable.
Restrictions on Online Content
Prior to the 2011 Uprising, the General Postal and Telecommunications Company (GPTC), was the sole authority for domain name registration and issued “the Terms of Service” to govern the use of the Libyan “.ly” registry.
Transitional governments subsequently removed the GPTC and established the Libyan Post Telecommunications and Information Technology Company (LPTIC) and the General Authority of Telecommunications and Informatics (GATI).
The LPTIC is a holding company for all telecommunications service providers in the country, whilst GATI is responsible for policymaking and regulations. Responsibility for Libya’s top level domain “.ly” is currently that of Libya Telecom and Technology (LTT), with Libyan Spider handling registration requests.
LTT has continued to recognise the Terms of Service issued by the GPTC. The Terms of Service prohibit domain names that are “obscene, scandalous, indecent, or contrary to Libyan law or Islamic morality words, phrases or abbreviations”. The Terms of Service also do not permit the use of Libyan domains by sites which are “for any activities/purpose” not permitted under Libyan law.
LTT may delete registered domains if they consider registrants to be in violation of any of the Terms of Service or if LTT receives an order from a Libyan court.
In February 2015, LTT blocked access to the the news site Alwasat, which published views critical of the General National Congress (GNC) and affiliated militias, in response to an apparent court order. The LPTIC subsequently published a statement saying that the website blocking was unintended and the result of LTT facilities being taken over by “outlawed groups” acting illegitimately and issuing false statements.
The blocks placed on the Alwasat have since been lifted.
To be continued …