This statement was originally published on afte.org in Arabic on 2 November 2015.
In late October, social media users in Egypt circulated a video recording of a girl being physically assaulted in a shopping centre in Cairo. The video in question shows the attacker violently hitting the girl, whose name has been revealed as Sumaya Abeed.
In the wake of the social media storm caused by the circulation of the video, television programmes also began to address what had happened and on Tuesday 27 October, television anchorwoman Reham Saeed broadcast an interview with Sumaya on her programme Sabaya al-Kheir on the satellite channel “al-Nahar” to tell the story of the harassment and assault that Sumaya had endured. After the interview, Saeed decided to give her own perspective based on her personal impression that the girl was not trustworthy.
In cooperation with her team on the programme, she showed personal images of Sumaya during a monologue in which she justified her assault and harassment on the basis of photos of Sumaya's personal life and behaviour. According to Sumaya, the images were shown without her consent or knowledge.
What Reham Saeed and her team did constitutes, in essence, misuse of freedom of expression, and a violation of the right of Sumaya Abeed to privacy, with the intention of damaging her reputation and position in society.
The programme provoked a broad societal and media response, characterised for the most part by sharp criticism of the actions of Saeed and her team. Activist groups and social media users promoted a campaign to boycott companies sponsoring the programme Sabaya al-Kheir to put pressure on them to withdraw their support, which a number of them have already done. The management of the channel al-Nahar subsequently announced the suspension of Saeed's show and opened a broad investigation into the allegations made against the programme. The management also deleted a video featuring the personal photos of Sumaya from its YouTube channel.
Has a crime been committed?
The incident involved more than one crime in urgent need of addressing. The first is in the way in which the Sabaya al-Kheir team obtained Sumaya's personal photos. Sumaya claims that no one asked her for permission to take the images, which she says were stolen from her mobile phone.
The second consists of the fact that distributing the images constitutes a clear violation of Sumaya's right to privacy, a right guaranteed by article 57 of the Egyptian constitution:
Private life is sacred and inviolable. Postal, telegrammatic and electronic communications, phone calls, and other forms of communication are protected, and their confidentiality guaranteed. They should not be confiscated, viewed or monitored except with an authorizing court order, for a limited time period and in the circumstances specified by the law.
International human rights law also provides broad protections for individual privacy. Article 17 of the international covenant on civil and political rights states that:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
According to general comment 16 issued by the Committee for Civil and Political Rights in the United Nations on this article, and which is specifically concerned with the protection of private life, article 17 provides for:
The right of every person to be protected against arbitrary or unlawful interference with his privacy, family, home, or correspondence as well as against unlawful attacks on his honour and reputation. In the view of the Committee this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. The obligations imposed by this article require the State to adopt legislative and other measure to give effect to the prohibition against such interferences and attacks as well as to the protection of this right.
Right to privacy or free expression: Which takes precedence?
The truth is that these two rights create a clash between two interests. The first is the interest of individuals and society in guaranteeing freedom of thought and expression without restrictions. The second is the interest of individuals in the protection of private life and for it not to be exploited to their detriment. In order to resolve this conflict and establish limits to regulate the behaviour of journalists and media figures when publishing or broadcasting information about the private lives of individuals, a number of questions need to be clearly answered. Answering these questions makes it possible to identify whether distributing information constitutes a violation of privacy or the democratic exercise of freedom of expression.
- Is publishing the material (information or images) in the public interest?
- Is the victim a public figure?
- Did the incident take place in a public place?
- Did the victim agree to publication?
- Is it necessary to reveal the identity of the victim?
- What is the justification for publishing the material?
These questions constitute the standards which journalists and broadcasters must meet when dealing with a person's private life. Transgressing these standards is considered an exploitation of freedom of expression. Restrictions and the payment of damages are therefore essential to protect the right of the individual to the protection of their privacy.
In order to explore these standards and understand them more precisely, it useful to consider the case brought to the European Court of Human Rights by Princess Caroline of Monaco. The case focused on the question of whether the right to privacy or the right to freedom of expression should take precedence.
Princess Caroline brought a complaint that paparazzi working for a number of German magazines had taken photos of her while carrying out daily activities including: eating in a restaurant, riding a horse, rowing, playing with her children, shopping, skiing and meeting with a friend. A German court ruled in her favour with regard to photos taken of her while she had been “seeking privacy”.
While accepting that some of the photos were private and thus deserving of protection (such as photos of her with her children or sitting with a friend in a private area of a restaurant), the court rejected her complaint with regard to the other images. The princess subsequently took her case to the European Court, which ruled that article 8 was applicable but that it wished to balance protecting the Princess' private life with protecting freedom of expression, which is guaranteed by article 10 of the European Convention on Human Rights.
The court ruled that protecting the rights of individuals and their reputation is of special importance with regard to taking and distributing images since it is related to distributing “thoughts” and deeply personal information. Additionally, the photos published in the tabloids were viewed in the context of the harassment of the people pursued by the paparazzi which evoked feelings of violation and persecution.
The court ruled that the key factor in balancing protection of private life with protection of freedom of expression is the contribution published images and articles make to the public interest. The court ruled that the photos of the princess were of an entirely private nature and were taken secretly without her knowledge or consent. The images made no contribution to the public interest since they did not show the princess engaging in official activities and were concerned solely with her private life.
We find here that the court established a distinction between the two rights, specifically between exercising the right to freedom of expression and popular monitoring as one aspect of it, and pursuing precise details about the private lives of individuals.
What Reham Saeed and her team did constitutes, in essence, misuse of freedom of expression, and a violation of the right of Sumaya Abeed to privacy, with the intention of damaging her reputation and position in society. Saeed deliberately broadcast deeply personal images with no public interest justification and which the public did not need to see, following her failure to obtain Abeed's consent.
How was the information obtained?
This kind of behaviour makes it necessary to restrict the freedom which Saeed exploited and misused in order to encroach on the rights of others. If justice is to be served, this case should not pass without a material penalty and payment of damages to Abeed, whose privacy was clearly breached without regard to either the law or professional or moral standards.
However the most important question here is what constitutes an appropriate punishment that will achieve the required balance between guaranteeing freedom of expression and individuals' right to protect their private lives. Is taking away Reham Saeed's freedom going to attain that balance or is merely cancelling her programme enough of a response?
There is no question that the violation of individuals' privacy is a crime that must be punished. The debate here is about the appropriate nature of that punishment. This question has special importance in the context of Egypt's low quality media scene, which has repeatedly seen dangerous violations of personal privacy, the broadcast of hate speech, slander of political opponents and the defamation of activists in addition to other violations.
Is imprisonment the right punishment?
The Association for Freedom of Thought and Expression takes the view that “penalties in crimes of publication and broadcasting should not deprive the offenders of their liberty” and agrees that it should be the general principle for assessing this type of crime. It considers that this principle should not be applied selectively – specifically among groups of defenders and activists in the field of human rights – but rather as a general standard before which all journalists and broadcasters are equal without discrimination.
The association emphasises that the appropriate punishment in cases like this has two aspects: first, an administrative penalty specified by the management of the channel. This can range from suspending employees from working for a specified period of time and requiring them to pay a fine, to suspending a programme, to dismissing those responsible from the channel.
These punishments were supposed to be included within a “media honour charter”, agreed to by the media, and to which reference can be made in cases like this.
It is also possible to refer to channels' editorial guidelines and policies. This is what we are currently lacking in Egypt, in the context of constant media violations since the 25 January 2011 revolution until the present day, in addition to the unjustified slowdown in the issuing of new legislation regulating journalism and the media required by the 2014 Egyptian constitution.
The second aspect of punishment concerns the right of the person against whom the crime was committed, in this case Sumaya, to bring criminal or civil proceedings against the perpetrator of the crime, the Sabaya al-Kheir team. However, punishment is restricted, for example, to barring the perpetrators from professional practice for a period of time (six months for example), suspending the programme for a period of time, or fining the perpetrators and channel.
Imprisonment, or otherwise restricting the freedom of the perpetrators, should not be permitted.
The association emphasises that the key to resolving the conflict between the right to privacy and the freedom of the press, which is considered an aspect of freedom of expression, lies in reforming, redeveloping and refining the culture of the Egyptian media and press. This issue has dominated the agenda of the Press and Media Association in Egypt since the outbreak of the 2011 uprising, as well as before and after it. It considers that this can be achieved through implementing the stipulations of General Comment 16 on Article 17 of the International Covenant on Civil and Political Rights, which specifies that:
"...the obligations imposed by this article require the State to adopt legislative and other measure to give effect to the prohibition against such interferences and attacks as well as to the protection of this right."
This is the key issue: In Egypt we lack a legislative or structural framework that allows us to protect the right to privacy and prevent interference with and attacks against this right. We do not have a law on the distribution of information that protects the right of journalists and broadcasters to obtain and publish information from sources and we do not have a commission for privacy able to make rulings in the event of a violation of the sanctity of the private life of citizens. Similarly, there is no charter of media conduct with the support of a majority of the members of the Journalism and Media Association. The absence of these bodies makes the repeated occurrence of these types of violation a routine phenomenon.
It is still possible to correct the path and restore the possibility of achieving a media that is sophisticated, free and responsible. This is especially true since the new House of Representatives, which bears significant responsibility in preparing, reviewing and passing important laws that affect the lives of Egyptians, will soon be convened. Examples of such laws include the law for the distribution of information and the law for the regulation of journalism and the media.
It is still possible to correct the path and restore the possibility of achieving a media that is sophisticated, free and responsible.
We must not ignore the fact that the draft law for the regulation of journalism and the media issued by the “National Authority of Media and Journalism Legislation” shows advances in this issue. Passing the law – after the completion of popular consultation and revision by parliament – will result in the creation of a national body to regulate the media, a national body to regulate journalism, and a supreme media council, as well as a ratified charter of media conduct.
This represents an important shift on the level of the ruling body for journalism and the media in Egypt, providing that the legislation respects the rights of citizens and follows the constitution and international agreements. For example, the draft law did not discuss in any of its articles the issue of imprisonment in publishing cases. In contrast, article 22 of law 96 of 1996, which currently regulates the media, specifies that “whoever contravenes the preceding two articles is to be punished with imprisonment of no longer than a year and a fine of no less than 5,000 EGP and no more than 10,000 EGP, or one of these two punishments”. Of the two articles referred to here, the more important is article 21 which specifies that “neither journalists or others should interfere in the private lives of citizens, nor should they discuss the conduct of those working in public office or of individuals working as public prosecutors or engaged in public service, unless it is closely related to their business and intended to benefit the public”.
Additionally, article 11 of the draft law specifies the requirement that every newspaper and media outlet establish an editorial policy. It specifies that by “editorial policy”, it means the goals of the newspaper or media outlet, its political, social and cultural affiliations, and the standards governing its output. We badly need this from all responsible media outlets with the goal of telling the truth and enriching public and social debate about diverse issues rather than merely providing traffic updates and viewing figures.
Article 39 of the draft law for the Regulation of the Press and Media, states that victims of violations have the right to present complaints against content published in newspapers or broadcast on television or radio to the Supreme Media Council, without losing their right to bring criminal or civil proceedings. The council will be responsible for investigating complaints and taking appropriate action against newspapers or television or radio channels in the event of a breach of either the law or of the charter of press conduct. The council will be able to refer journalists and broadcasters to their respective syndicates for rulings in the event of providing sufficient proof supporting the validity of complaints made against them. This establishes systematic channels for the media to be evaluated, assessed and challenged.
This is coupled with article 43 of the draft law which prohibits preventative custody or release on bail in cases of crimes committed via newspapers or media outlets.
The Association for Freedom of Thought and Expression emphasises that imprisoning journalists and broadcasters in publishing and broadcasting cases cannot be the right way to respect the right of citizens to privacy and prevent media violations.
Rather, correcting Egypt's media environment and reforming the legislative structure regulating the press and media in Egypt is the correct way to prevent the recurrence of these mistakes. Perhaps the most important aspect of the case under discussion and that we should take time to consider, is the extremely positive popular response.
The common consciousness that led hundreds of thousands of activists and social media users to organize campaigns calling for those responsible for violating the privacy of a citizen to be called to account. This is the most positive outcome of the case. Developing popular awareness of the need to regulate the media and intervene when it oversteps its role of reporting the truth is the true guarantee of an honest media that respects citizens, protects their rights and fears violating them.