Virtual rights or assuming rights
In 2022, the Libyan House of Representatives issued Law No. 05 of 2022 on combating cybercrime in a legislative attempt to keep pace with social and digital reality and frame the virtual and digital world. According to its second article, the law aims to reduce the incidence of cybercrime; support achieving justice and information security; protect public order, public morals, and the national economy; preserve rights related to the legitimate use of modern technology; and enhance public confidence in the validity and safety of online information.
Law No. 05 of 2022 defines its objectives realistically and explicitly. This realistic approach is indicated in phrases such as “to reduce the incidence of cybercrimes,” in Article 2. It does not stipulate that the law aims to eradicate cybercrimes and is limited in the end. Law No. 5 of 2022 is a penal law is unlike the nature of these crimes or their unlimited forms, amid tremendous and rapid scientific and technical progress that poses to legislators across the world new challenges almost annually, and requires legalization. The legislators of the law considered the changing, complex, and rapid nature in the article by using the term “to support achieving justice and information security.” This suggests that this article will be supported by other articles, which have not yet reached the draft stages.
However, that notable realistic and explicit approach of the law, and its second article, reaches beyond its text. Rather, the explicit characteristic distinctly manifested over what was not stipulated in Article 2, which excludes respect for constitutional rights through the regulation of cybercrimes, including human rights protected by the constitution. The articles further excludes the characteristics of the civil and democratic state stipulated in the Constitutional Declaration of 2011, which is reflected in the text. In this analysis article, we discuss what constitutional rights are completely absent from the wording and content of the law.
The lack of consideration of constitutional rights may appear strange for at least two reasons. The first is self-evident that any legislative legal text respects the constitutional requirements and what is stated therein, and the international agreements ratified by the state, which are not only obligations to the state but rather a part of the national legislation, once issued or ratified. The Constitution is the highest legal text in rank, followed by ratified international treaties. This is known as the hierarchy of legal texts and imposes respect for the higher rank text over the lower rank text as a general principle that does not require any text. Since the Constitution is the highest ranked legal rule, it is self-evident that the text of the law respects the text of the Constitution, which explains the existence and jurisdiction of the Supreme Court for constitutional oversight.
The second reason is the novelty of Law No. 05 of 2022 issued on November 2022, eleven years after the Constitutional Declaration of 2011. This law is also different from older legal texts prior to the Libyan revolution. Article 35 of the Declaration is considered null and void for its explicit violation of the declaration, pending amendment or cancellation or the enactment of new laws that are consistent with the declaration, although in recent years, Libyan administrations and governments utilized this phenomenon of referring to pre-2011 law. This law may be evidence of the type of parliament involvement in that phenomenon, which can be called apostasy from the revolution and the aspirations of the Libyan people from it.
The characteristic of cybercrimes and their immaterial and digital nature is no exception to respect for constitutional rights. The digital space, a public space that constitutionally protected where human rights can be enjoyed, must be regulated with consideration to rights and freedoms. Digital space should follow a different case than the material world, where legislation exists to undermine rights and constitutional requirements, during normal or exceptional times. The approaching elections in Libya require equal guarantees of every person’s fortune, rights, and respect in an effective manner, otherwise, the elections will be empty of any meaning, integrity, and transparency. This could create catastrophic effects, threatening the entire state entity before threatening individual constitutional rights and freedoms, so the various actors cannot make a mistake.
Law No. 05 of 2022 on combating cybercrime ignored constitutional principles and rights, manifesting in form and content, and this article tries to discuss:
- Form and procedures
Before discussing the law violation of the constitutional declaration in terms of form and procedures, the provisions of the Constitution that have not been respected are explained:
The Constitutional Declaration of 2011 affirmed in its articles 1, 4, and 7 that the Libyan state is a civil and democratic state.
Civility and democracy are hard to reduce to just formal procedures, such as holding elections or principles of separation and balance of powers but reach beyond that to respecting its philosophy that people are the source of power. The people exercise civility and democracy through their elected representatives, and further through the contribution of the individual to the public affairs of his country. This is a human right stipulated by article 21 of the International Covenant on Civil and article 13 of the Political Rights of the United Nations, and the articles of African Charter on Human Rights, both of which were ratified by the Libyan state. The right to participate in elections also reaches beyond the right to be informed, to participate in community dialogue, and to participate in matters of public interest and legislation, in a prior capacity, until the popular position and national public opinion on these issues crystallizes, after presentation, persuasion attempts, criticism, addressing the advantages and disadvantages, and trying to find a middle ground in which the majority of popular and political spectrum engage, in matters related to constitutional rights and freedoms. In addition, technical experts hold great value in that they can enrich that societal dialogue from a technical and scientific aspect, including comparative experiments and comparative law to guarantee maximum effectiveness of the law and clarity in the choices. And perhaps they contribute to a vision that shows the forms of subsequent violation of the law and its amendment in a manner that respects the main ideas in its legislation.
Law No. 05 of 2022 and the circumstances of its issuance included that this law was voted on swiftly. The proposed draft law was adopted only one day following its addition to the Parliament’s agenda, and without any consultation with Libyan civil society, including associations, organizations, activists in the digital field, human rights defenders, or experts in the field.
The window of time that was made available from including the draft in the Parliament’s agenda to voting made it impossible for any organized community dialogue on that draft. It is impossible even for a legal expert in the field to share their opinion on the draft law in one day, given its length and the multiplicity of areas of its intervention. However, members of the House of Representatives, who have not necessarily mastered the matter technically or legally, passed the law in one day.
The time allotted for discussing the draft text presents evidence of lack of respect for the principle of dialogue inside and outside the Parliament. This is a defect in the aforementioned law in terms of respecting the principles of democracy, considering the importance of the regulated article.
This swiftness affected the drafting of the text itself, as we find that the law defines terms in its first article that are not mentioned in the rest of the articles, such as computer viruses, digital forensic evidence, or digital identity.
The speed of issuing this law contradicts the importance of the law and its impact on human rights, amid historical importance of the issue of freedoms and rights in the immaterial digital field, and the importance of media and means of communication to the Libyan revolution. The Libyan Constitutional Declaration further affirms this importance and centrality in its preface and mentions that the Libyan revolution is what allowed the enactment of the constitutional declaration.
In terms of form, Law No. 05 of 2022 was distinguished by the inaccuracy of its drafting, despite the technical accuracy the drafting assumes, whether in terms of specifics of the digital world, or the legal specifics of a special penal text. The law includes several loose and inaccurate phrases and terms, turning it into a wide container for criminalization contrary to the principles of rationing in the penal article and the consequent systematic violations of constitutional rights and freedoms and the abolishment of their guarantees. These terms include “prejudices or ideas that may destabilize the security and stability of society or affect its social peace” (Article 7), “violating public morals” (Article 8), “satisfying sexual desire” (Article 22), “the person could have notified the competent authorities” (Article 35), “publishing data or information that threatens public security and safety in the state or any other country” (Article 37), or “offending a religious sanctity or ritual” (Article 42).
These terms pose loose and rubbery concepts, preventing the definition of the material elements criminalized by those articles, and further affecting even the principle of the legality of crimes and penalties. Any person has the right to know the criminalized acts according to a text that precedes the criminal act, and the vagueness of the text’s terminology fails in determining the elements of the crime. This poses danger for providing a platform for systematic violations of human rights, as individuals become hostage to the different interpretations that law enforcement agents, the Public Prosecution, and jurisprudence may give, which is often different to the extent of conflict, affecting even the principle of equality in the application of the law.
The United Nations Human Rights Committee (UNHRC) took notice of the seriousness of those inaccurate terms that have become legislative techniques for the suppression of human rights. In 2011, UNHRC stated in its 102nd session and general comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights in Paragraph 25: “…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.”
The content of Law No. 05 of 2022 was not keen on the constitutional requirements of its form, while the security concern dominated the legislators of the draft. Thus, the content of the law failed to respect the requirements of constitutional principles and human rights, and failed to provide guarantees for them, such as the multiplicity of formal crimes, the threat to private life, and the right to freedoms of opinion and expression, journalism, and respect for the independence of the judiciary and the right to resort to it.
Most of the crimes in the aforementioned law are negligent crimes, meaning the criminal act or acts are sufficient for the occurrence of the crime without standing on the will of its owner or his/her intention to perform the act. These are crimes of an exceptional nature because criminal liability, unlike civil or even administrative liability, is based in principle only on a personal volitional act. A person’s will is directed to committing the criminal act, which is consistent with the principle of good faith enshrined in Article 31 of the Constitutional Declaration. Numerous criminalized acts mentioned in the appealed law can be made by a person without any criminal intent, but by software/programs that the user of the online networks is unaware of. Many programs and algorithms exist surreptitiously. By clicking any link for a purpose other than the creation of these unknown inevitable effects, a person can find himself/herself a publisher of or contributor to criminal content or entering into a domain without any permission among other criminal acts. The victim becomes a criminal for performing an act without intention. The same case can be applied to computer viruses, which the law ignored as a reason for exempting the victim, despite defining it in Article 4.1.
Article 7 of the law violates private life and freedom of correspondence, stipulating absolute authority for the National Information Security and Safety Authority to view and monitor the content of what is published online. The law considered the whole online space as a public domain for the authority, and only excluded private correspondence that was subjected to the permission of the competent judge without specifying the procedures of this permission, its form, justification, or the possibility of appealing it. Article 7 diminishes the guarantees of protection of private life and correspondence protected by the Constitutional Declaration and in its article 7 considered the state a guarantor of that protection.
The law grants broad powers to the authority, with vagueness of grievance procedures against its decisions. The aforementioned loose wording in the first paragraph addressing the defects of the law in form, represents a serious threat to all human rights that are constitutionally guaranteed, including the right to freedom of opinion, expression, press, and publishing. For example, if a blogger, journalist, or candidate in an election decides to reveal facts, statistics, or corruption practices, contrary to what was announced by the government or even the judiciary, or reveals what was covered up in order to enable citizens of their right to be informed and to contribute to public life, which are rights enshrined in international conventions, including the International Covenant for Civil and Political rights and the African Charter — would the National Information Security and Safety Authority consider these acts as destabilizing the security and stability of society or jeopardizing its social peace in accordance to Article 7 of Law No. 05 of 2022, and thus exercise its power to block those publications or websites that posted it? What guarantees that human rights will not be violated under the authority’s exercise of its powers, especially if that practice is not equal according to political or partisan affiliation or interests?
If a candidate in an election raises the issue of lack of sexual education for children and youth in schools and institutes in Libya to justify putting a point in his/her program to develop a pedagogical policy for the state in this field, will the authority consider this topic contrary to public morals, according to the Article 8 of the aforementioned law, and block the website on which that candidate or party exercises its electoral campaign? Would the authority consider this an opportunity for political recruitment to approach conservative political sensitivities?
Article 29 mentions many similar terms that criminalize distributing or publishing information that provokes racial, sectarian, or religious strife, discriminating between certain people. Can a candidate present a shocking reality of a real disparity in Libyan society that may be based on racial, sectarian, religious, or even regional criteria, to suggest within his/her electoral program measures to amend disparity or discrimination, or represent privilege of a minority that could be considered a perpetrator of a crime?
These examples are not from a legal imagination, but rather found in many real examples. On 17 February 2023, the Ministry of Interior of the Government of National Stability in Benghazi, announced the arrest and detention of popular singer Ahlam el-Yamani and Haneen al-Abdali, blogger and content creator, in Benghazi, due to “crimes violating honor and public morals, and for violating Cybercrime Law No. 05 of 2022.” The Ministry of Interior’s statement did not provide any details on the arrest or the content in question. The Ministry accused and arrested both women over charges of “posting indecent and offensive content against the dignified status of Libyan women in our conservative society with foreign acts and behaviors to us and offend our customs, traditions and true religion.” There was no further news about their judicial status.
There are numerous other cases where we find ourselves hostage to an impressionistic and individual adaptation of the authority, law enforcement agents, or the Public Prosecution, which have been proven by previous experiences. The law is considered an appropriate tool for violating human rights and settling scores with politicians and human rights activists, including in an electoral circumstance. These practices allow and may aim to block or prevent the competitor or competitors to achieve special electoral interests, and win the election, which represents a guarantee of impunity that even if achieved will be late, revealing more constitutional flaws in Law No. 05 of 2022.
Law No.05 of 2022 neglects and denies the judiciary, while granting the National Information Security and Safety Authority vast powers of a judicial nature. Monitoring the regulation of human rights is a task only entrusted to the judiciary. Meanwhile, the authority cannot collect the powers of reviewing, monitoring, referring, and deciding on violations, while taking a penal decision at the same time. Law No. 05 of 2022 permits the authority of the decision to block, while it is a decision that can only be judicial, because whoever makes the decision cannot monitor themselves or be a guarantor of the rights of citizens. The authority’s formation is not neutral, and even if it enjoys financial independence, it is under the authority and supervision of the Ministry of Communications and Informatics, which has the power to appoint. Therefore, according to the principle of equivalence in formalities, it has the power to dismiss the head and members of the authority, and the judicial control officers, according to Article 51 of Law No. 05 of 2022.
The aforementioned law poses grave danger for neglecting to organize the characteristics of evidence and procedures in accordance with the specificity of those immaterial and digital crimes and the requirements of the right of defense and the right to a fair trial by a competent court within a reasonable time. The election candidate, for example, will have his/her site blocked, or will be referred to the judiciary, even in the case of suspension based on an arbitrary interpretation of the authority or the Public Prosecution, until the candidate obtains an administrative decision to cancel the blocking decision or not to be penalized. This case will be void of any meaning, because the elections will have ended at that time, and the violators of the law will have achieved their goal, turning normal procedures into a violation of the right. The legislators of Law No. 05 of 2022 had to set rules of procedures, evidence, and deadlines that are compatible with the effectiveness of the legal and judicial protection established for constitutional rights.