On June 4, 2020, ARTICLE 19 MENA and MENA Rights Group submitted a legal analysis of the controversial draft law on social media to the UN Special Rapporteur on freedom of opinion and expression. The text contains several provisions that are not in line with international standards on freedom of expression online. It grants excessive powers to both network providers and the administration while criminalising calls for boycotts and the dissemination of “false information”. ARTICLE 19 MENA and MENA Rights Group call for the immediate withdrawal of this text by the Moroccan government.
Lack of consultation and transparency
On March 19, 2020, the Government Council approved draft law No. 22.20 on the use of social networks, open broadcasting networks or similar networks, which was presented by the Minister of Justice. According to the Minster of Justice, the text aims at filling a legal loophole in order to combat false information more effectively, and harmonise the Moroccan’s legislation with the Budapest Convention on Cybercrime[1], ratified by Morocco, although the said Convention does not include any provision on freedom of expression on social media.
Many civil society organisations denounced[2] the absence of consultations held prior to the adoption of the draft law by the Council of Ministers, as well as the lack of transparency regarding the content of the provisions. They discovered the text in detail on April 27, 2020, following a leak on social networks.
Human rights NGOs and some parliamentarians severely criticised the government’s proposals. They felt that the government had taken advantage of the COVID-19 pandemic to introduce measures restricting civil liberties.
As a result of this opposition, the bill was temporarily suspended on May 4, 2020. Article 19 MENA and MENA Rights Group recommend the complete withdrawal of the text and its replacement by a legislation in line with Morocco’s international commitments.
Censorship power granted to network providers
Article 8 of the draft law grants broad censorship powers to “network providers”, which are tasked with “suppressing, prohibiting, restricting access to any electronic content which clearly constitutes a dangerous threat to security, public order or which would be likely to undermine the constants of the Kingdom, its sacredness and its symbols within a period of not more than 24 hours.”
ARTICLE 19 and MENA Rights Group recall that international standards[3] prescribe that censorship measures cannot be delegated to private entities. The assessment of the content’s unlawful nature cannot be left to the platform operators alone, at the risk of leading to a privatisation of judicial prerogatives, as is the case here. This is all the more concerning as the grounds for censorship are particularly vague and subjective. They may include content falling under the peaceful expression of opinions on the Internet. In addition, the draft law obliges operators to remove such content within 24 hours. Such a short deadline does not allow for a thorough assessment of the content’s lawfulness.
In this respect, we draw attention to the fact that the French Constitutional Council has recently censured[4] almost all similar provisions contained in a law on combating hate speech online.
Powers granted to the administration
Articles 10, 11 and 12 of the draft law grant broad prerogatives to the administration or to a “control body”, without providing further detail about the establishment of such body.
In the event of non-compliance with article 8, article 10 stipulates that the administration shall be competent to send a formal notice to the defaulting service provider in the first instance where it does not immediately comply with requests made by the administration and does not proceed with the removal of any content deemed illegal or manifestly prejudicial to public safety and public order, after five days from the date of receipt.
Failure to comply with this injunction may result in an administrative penalty of 500,000 dirhams, which may be accompanied by a temporary suspension. If the service provider still does not comply with the administration’s request within five days, article 11 allows the administration to withdraw their authorisation or operating license and prohibit them from operating on the Moroccan territory.
It should be recalled that blocking sites is almost always disproportionate under article 19 (3) of the International Covenant on Civil and Political Rights (ICCPR[5]) ratified by Morocco, because it prevents access to other legitimate content on the Internet.
On the other hand, the draft law does not provide for the issuance of an order by an independent and impartial judicial body, in compliance with due process guarantees and standards of legality, necessity and legitimacy.
Call for boycott
Article 14 of the draft law provides for “imprisonment for six months to three years and a fine of 5,000 to 50,000 dirhams, or either of these two penalties, for anyone who deliberately calls on social networks, open broadcast networks or similar networks to boycott certain products, goods or services or to publicly incite them to do so.”
The introduction of this provision follows the 2018 “Moukatioun[6]” boycott campaign, which targeted several consumer products and service stations. The targeted companies were accused of increasing their prices without regard to the purchasing power of consumers.
We are concerned that this provision may violate the peaceful exercise of freedom of expression by individuals wishing to make non-violent criticism of a company or business practice. International law recognises that campaigns of boycotts are legitimate forms of political expression, and that non-violent expressions of support for boycotts are, in general, legitimate speech that must be protected.
The Special Rapporteur on freedom of religion or belief has stressed that “under international law, boycotts are considered to be a legitimate form of political expression, and non-violent demonstrations in support of boycotts are generally considered to fall within the legitimate freedom of expression that must be protected.”
This position is also shared by the European Court of Human Rights (ECHR[7]). In its Baldassi v. France[8] judgment of 11 June 2020 on the boycott of certain Israeli goods, the court held that “boycott is above all a means of expressing critical opinions. The call for a boycott, which seeks to communicate those opinions while calling for specific actions related to them, therefore falls in principle within the protection of Article 10 of the Convention.”
The spread of “false information”
Article 16 of the draft law provides that “anyone who deliberately uses social networks, open broadcast networks or similar networks to publish or promote electronic content containing false information shall be punished by imprisonment for three months to two years and a fine of 1,000 to 5,000 dirhams, or either of these two penalties alone.”
False news are defined as “all deliberately fabricated news that is published with the intent to deceive and mislead another party into believing the lies or questioning the facts that can be proven.”
We are concerned about the particular vagueness of the terms used in the above provision and the existence of custodial sentences in article 16. It has long been established that the distinction between fact and opinion is far from simple. That being said, laws criminalising the dissemination of false information can be misused by the authorities to muzzle journalists, political opponents and human rights defenders who criticise the government. Several international and regional mandate holders on the right to freedom of opinion and expression clearly noted in a Joint Declaration on “False News, Propaganda and Disinformation[9]” that prohibiting the dissemination of information based on vague concepts such as “false information” was incompatible with international standards for the protection of freedom of expression.
Other less restrictive measures to combat “false news” could have been envisaged, such as the promotion of independent fact-finding mechanisms, state support for independent, diverse and adequate public service media, and public and media education, which have been recognized as less intrusive means to combat misinformation.
Concluding remarks
ARTICLE 19 MENA and MENA Rights Group believe that the provisions contained in the draft law are incompatible with the requirements of article 19 of the ICCPR and call for the full withdrawal of the text. The Government of Morocco should organise a consultation of parliamentarians and civil society organisations with a view to develop a legislative framework for the use of social networks that complies with international standards, as soon as the health situation allows.
[1] https://www.coe.int/en/web/cybercrime/the-budapest-convention
[2] https://www.article19.org/fr/resources/maroc-non-au-choc-liberticide-en-periode-de-crise-sanitaire/
[3] https://undocs.org/en/A/HRC/32/38
[4] https://www.conseil-constitutionnel.fr/decision/2020/2020801DC.htm
[5] https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
[6] https://www.reuters.com/article/morocco-protests/morocco-consumer-boycott-has-big-business-in-its-sights-idUSL5N1SP35Z
[7] https://www.echr.coe.int/Pages/home.aspx?p=home&c=fre
[8] https://opiniojuris.org/2020/06/16/baldassi-and-others-v-france-criminal-convictions-of-bds-activists-violate-freedom-of-expression-under-the-european-convention-on-human-rights/
[9] https://opiniojuris.org/2020/06/16/baldassi-and-others-v-france-criminal-convictions-of-bds-activists-violate-freedom-of-expression-under-the-european-convention-on-human-rights/