Key Principles of International Law and Freedom of Expression – MENA

Key Insights

• Human rights have become firmly entrenched in international law since the adoption of the seminal Universal Declaration of Human Rights in 1948.
• Since then, international human rights law has become increasingly influential in domestic courts and has set a global standard for the protection of human rights.
• Freedom of expression is one right that has benefitted from this trend, but faces novel challenges due to the dramatic changes to the media and information eco-system occasioned by the rise of digital communications technologies.
• United Nations mechanisms provide tools for those seeking to challenge violations of freedom of expression.

Introduction

Since at least the formation of the United Nations (UN) and the establishment of the modern regime of international human rights law in the wake of World War II, the right to freedom of expression has become universally acknowledged.  An example of this universal acknowledgement is found in the constitutional protection of fundamental rights which, in most cases, is a result of the codification of international human rights treaty obligations in the respective domestic legal systems. Throughout the past decades, practice and implementation of these provisions has varied across legal systems and jurisdictions. Recent years have witnessed a regression in the level of implementation of these rights at the domestic level, to the extent of regressive and restrictive laws being adopted, implemented and used to curtail the freedom of expression, notwithstanding its clear protection in the provisions of national constitutions and the international human rights treaties ratified and codified by states.

The overall trend points towards justification of limitations on freedom of expression, freedom of speech and freedom of media and publication based on reasons of national security and a new swathe of legislation related to cybercrimes and electronic crimes. These limitations are justified by reference to provisions – often in the constitution – which specify that rights cannot be derogated from except where specified by law, and therefore legislative organs can – in theory – and do in practice – pass laws that limit these fundamental rights. This is not specific to Courts and jurisdictions in the MENA region, but what is notably distinct is the lack of a judicial exercise that involves balancing the fundamental rights that are to be enjoyed, with the limitations that are being applied by state and security institutions with a view to assessing whether the limitations are proportionate and, therefore, legitimate. This exercise is well known in many jurisdictions both in the MENA region (notably prior to the 1990’s in Egypt, Lebanon, Syria) and in European, American and Latin-American jurisdictions.

Courts in the MENA region have varied in their approach to the adoption and codification of international human rights law, following their ratification of international human rights treaties and conventions. Depending on the system of ratification (monist or dualist – addressed in the sections below in more detail), at times these resulted in constitutional and legal amendments at the domestic level to give full effect to international human rights treaties, or they were implied by virtue of the ratification process and directly applied by Courts.

The post-Arab Spring period initially saw slow but steady adoptions of constitutional amendments that strengthened fundamental rights and freedoms, often citing the events that lead to the reforms and the inherent fundamental rights contained in the constitution and in international human rights treaties and conventions to which the State was a signatory. Since this time, notwithstanding the newly amended constitutions, States – and particularly the legislature – have regressively adopted laws that directly contradict the fundamental rights provided for in the in international human rights law – whether directly, or through the provisions that explicitly affirm the supremacy of international treaties and conventions over domestic laws in the Constitution. Examples of such provisions can be found in several post-Arab Spring Constitutions and are described below.

Generally, several constitutions affirm a commitment to international law and the principles of the UN Charter and the Universal Declaration of Human Rights:

The Preamble of the Algerian Constitution 2020 states:

The Algerian people express their complete commitment to human rights as specified in the Universal Declaration of Human Rights of 10 December 1948, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (both issued on 16 December 1966), the African Charter on Human and Peoples’ Rights of 27 June 1981, and the Arab Charter on Human Rights of 23 May 2004. (1)

Similarly, the Preamble of the Egyptian Constitution (2014, amended 2019) also makes reference to its commitment to the UN Declaration of Human Rights:

We are drafting a Constitution that paves the way to the future for us, and which is in line with the Universal Declaration of Human Rights, which we took part in the drafting of and approved. (2)

The Preamble of Lebanon’s Constitution (1926, amended 2004) confirms that these principles are to be embodied in all sectors and scopes without exception:

Lebanon has an Arab identity and belonging. It is a founding active member of the Arab League, committed to its Charter; as it is a founding active member of the United Nations Organization, committed to its Charter and the Universal Declaration of Human Rights. The State embodies these principles in all sectors and scopes without exception. (3)

Because the right to freedom of expression is protected in so many treaties and soft law instruments, and widely acknowledged in domestic constitutional guarantees, it has come to be regarded as a principle of customary international law.(4) Nevertheless, today’s rapidly evolving world is presenting new and unprecedented threats to the full realisation of the right to freedom of expression for many around the world, especially journalists and the media.

In order for defenders of freedom of expression in the Middle East and North Africa region to address these new challenges adequately, it is crucial to have a firm understanding of freedom of expression in international law.  This Module seeks to provide an overview of the key principles related to freedom of expression in international law and provide a foundation for understanding how to use these principles in the new digitally-connected world.

Key Principles of International Law

Human rights in international law

Human rights are inherent to everyone and set out minimum standards for treatment of all people. They are enshrined in both national and international law, and everyone is entitled to enjoy such rights without discrimination. When fully realised, human rights reflect the minimum standards needed to enable people to live with dignity, freedom, equality, justice and peace.

The cornerstones of human rights are that they are considered to be inalienable and therefore cannot be taken away; interconnected and therefore dependant on one another; and indivisible, meaning that they cannot be treated in isolation. Not all rights are absolute; some rights may be subject to certain limitations and restrictions in order to balance competing rights and interests.

Human rights under international law are rooted in the Universal Declaration of Human Rights (UDHR), which was agreed to by the United Nations in 1948 following the end of World War II.  The UDHR is not a binding treaty in itself, but countries can be bound by those UDHR principles that have acquired the status of customary international law. Indeed, many of the provisions of the UDHR, including its article 19 guarantee of freedom of expression, are generally considered to reflect customary norms. The UDHR has further been the catalyst to creating other binding legal instruments, most notably the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).  Together, these three instruments constitute what is known as the International Bill of Rights. Since their adoption, additional thematic treaties have been developed to address certain topics, such as:

• The International Convention for the Protection of All Persons from Enforced Disappearance
• The International Convention on the Elimination of All Forms of Racial Discrimination
• The Convention on the Elimination of All Forms of Discrimination against Women
• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
• The Convention on the Rights of the Child
• The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families
• The Convention on the Rights of Persons with Disabilities
• The International Convention for the Protection of All Persons from Enforced Disappearance.

Applying international law in a domestic context

International human rights law is binding on states and sets a standard for domestic law to follow.  As summarised by the UN Human Rights Committee in relation the rights to freedom of opinion and expression guaranteed in the ICCPR:

The obligation to respect freedoms of opinion and expression is binding on every party as a whole. All branches of the State (executive, legislative and judicial) and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State party.  Such responsibility may also be incurred by a State party under some circumstances in respect of acts of semi-State entities.  The obligation also requires States parties to ensure that persons are protected from any acts by private persons or entities that would impair the enjoyment of the freedoms of opinion and expression to the extent that these Covenant rights are amenable to application between private persons or entities.(5)

However, the exact way in which international law obligations are implemented domestically can vary from country to country.

The way in which international law applies domestically is largely determined by whether a state applies monist or dualist principles:

• Monist states are those where international law is automatically part of the domestic legal framework.  However, the exact status of international law — whether above or on par with a state’s constitution or domestic law — varies.
• Dualist states are those where international treaty obligations only become domestic law once they have been enacted by the legislature.  Until this has happened, they are not formally part of the domestic legal system. However, in practice, international law is often still a useful tool for interpreting domestic law, and many courts have developed legislative or doctrinal principles whereby interpretations that are in conformity with international law will be preferred.(6)

States with common law systems are more often dualist, and states with civil law systems are more likely to be monist.  However, the issue of how international law is treated by domestic courts is often more nuanced in practice. For example, constitutional or statutory requirements to consider international law in many jurisdictions can blur the idealised categories of ‘monist’ and ‘dualist’ systems. Because the application of international law is so varied and complicated, practitioners must evaluate the specific context in a given country to understand how to apply international law and standards most effectively.

The complexity regarding monist and dualist mechanisms results in determinations on the status of international law in the domestic legal framework, vis-à-vis the constitution and ordinary domestic laws.

Several constitutions of States in the MENA region contain a so-called ‘supremacy’ clause, which determines the body of law that is to be considered ‘supreme’ – especially in cases of conflict between domestic and international law obligations. In general, there are three models – which allow for some variation depending on the political and legal frameworks in operation. The first is a vertically linear model in which international law is superior to constitutional law, which is in turn superior to domestic laws. The second model is where constitutional law is superior to international law (especially in cases of conflict), and constitutional law is obviously superior to domestic laws. The third model provides that constitutional law is superior to both international law and domestic law, with the effect that international law is not superior to either constitutional law or domestic law, but is rather at the same level as domestic law.

The Algerian Constitution 2020 provides:

The Constitution of Bahrain 2002 (amended 2017) confirms that the implementation of the Constitution cannot be done in a way that breaches its obligations according to the treaties ratified by Bahrain, and therefore are supreme, over its Constitution:

The Egyptian Constitution 2014 (amended 2019) puts international treaties at the same level as laws after approval by Parliament and promulgation, and explicitly states that no treaty shall be concluded which is contrary to the provisions of the Constitution:

These ‘supremacy clauses’ usually tend to be clear in terms of which is considered superior but sometimes include a caveat which defers the decision on supremacy to either the high court or the constitutional court.

For instance, though a rarity in comparative constitutional law, Art. 198 of the Algerian Constitution 2020 defers the question of constitutionality of international treaties, either prior to ratification, or after ratification, to the Constitutional Court:

Art. 206 of the Algerian Constitution confirms that:

Limitations on fundamental constitutional rights – including international human rights that are codified through the constitution – are often explicitly mentioned in constitutions, and this gives the legislature the authority to pass laws to limit and curtail the enjoyment of such rights.

Art. 13 of the Lebanese Constitution 1926 (amended 2004), states:

This in itself is not entirely problematic. But what it assumes and implies is that an independent judiciary would assess the relevant acts in the context of the laws that seek to limit the exercise of these freedoms as to whether the limitations were proportionate and therefore lawful – if not, the limitations imposed in implementation of the laws would be disproportionate, and therefore unconstitutional and unlawful. Often, such cases would have to go through the entire Court system through to the Constitutional Court where the laws or specific provisions would have to be challenged as being unconstitutional.

The Constitution of Jordan (1952, amended 2016), effectively provides for two types of treaties – those that affect the rights of Jordanian citizens and those that do not:

Although it is quite clear that international human rights treaties would affect the rights of Jordanian Citizens and therefore should be approved by Parliament, historically, at least with the International Covenant on Civil and Political Rights (ICCPR), the treaty was signed and was enforced by Courts even though it had not been approved by Parliament through what is known as a ‘Law of Approval’ which incorporates the international treaty into domestic law.  This came to a head in al-Tafilah Magistrate’s Court in 2010, in which a case involved the question as to whether the Convention on the Elimination of All Forms of Discrimination Against Women was valid since it had not been approved by the National Assembly, although it had been ratified in 1992 and published in the Official Gazette in 2007 (as all laws must be). This and other cases show that the practice in Jordan has been inconsistent: at times monist and at other times dualist, as regards the domestic incorporation of international law.

Notably, prior to the 2016 Constitutional amendments, the Constitution did not specify the mechanisms for parliamentary approval or an approval law. In this context the Court of Cassation ruled:

The jurisprudence of the Court of Cassation established that the Treaties that affect the public and private rights of Jordanians would not be applicable, unless Parliament expressly approves them pursuant to Art. 33/2 of the Constitution, and that merely publishing the Treaty, or the Law of Approval for the Treaty, would not suffice and would render the Treaty inapplicable. Rather, a law must be passed for this very purpose to give effect to it and for applicability of its provisions. (12)

Similarly, Jordanian Courts also settled the issue related to the supremacy of international law, in favour of international law over other laws:

International Treaties [that have been ratified] have supremacy over domestic laws, and they have superiority in cases of conflict with domestic laws, and in such cases, domestic laws cannot legitimately be invoked in cases of conflict with international treaties. (13)

In another decision, the Court gave fuller reasoning for its decisions:

International treaties which have been entered into by the State have the utmost priority amongst the applied laws, and they are applicable even if they may conflict with the provisions of the [domestic] laws. (14)

Jordanian Courts also confirmed the supremacy of international treaties over regional treaties ina case concerning the request for extradition of a Syrian refugee in Jordan to Syria under the Riyadh Arab Agreement for Judicial Cooperation (1983). The Amman Magistrate’s Court decided (15) not to deport based on Jordan’s obligations under Art. 3 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment of Punishment (CAT). The decision was confirmed by the Amman Court of Appeal (16) and by the Court of Cassation, (17) establishing this principle in Jordanian jurisprudence.

The Constitutional Court of Jordan has since delivered an Interpretative Decision (in which it is asked to interpret articles of the Constitution) for Art. 33 of the Constitution regarding the status of international treaties in the domestic legal system. It affirmed that ratifying a treaty is an act of sovereignty and that Parliament may not issue a law that contradicts with a provision of a treaty which has been ratified by Jordan in accordance with the Constitution. It therefore held that treaties that are properly ratified are higher than domestic laws, but left aside the question of what proper ratification means and how to determine whether a treaty must be approved by parliament in order for it to become part of the domestic legal framework.(18)

The Moroccan Constitution 2011 is unique in its treatment of the incorporation of international treaties into the domestic legal system and this is a recent development since the establishment of the Constitutional Court in Morocco.

First, it is explicit in asserting that treaties that relate to rights and freedoms of citizens can only become part of the domestic legal framework after being approved by a law, in other words, by parliament, which can be submitted to it by the King before its ratification.

The Constitutional Court has a pre-review function which, when referred to by the King, can review the international treaty for compliance with the constitution. If the Constitutional Court finds a provision contrary to the Constitution, its ratification is only possible after amending the Constitution. Therefore, although a treaty must be adopted through an act of parliament first to be incorporated into the domestic legal framework, if the question is referred to the Constitutional Court, the Court holds international treaties as higher than even provisions of the Constitution, which must be amended if ratification is to take place.

In this context, the Tunisian Constitution 2014 is perhaps the clearest and most succinct:

The Right to Freedom of Expression Under International Law

Freedom of expression under international law

The rights guaranteed by article 19 of the ICCPR comprise three distinct but interrelated rights: the right to hold opinions without interference (freedom of opinion); the right to seek and receive information (access to information); and the right to impart information (freedom of expression).

The UN Human Rights Committee’s (UNHRCtte) General Comment No. 34 provides the Committee’s authoritative views on the correct interpretation of article 19. In this comment, the Committee notes that the right to freedom of expression includes, for example, political discourse, commentary on one’s own affairs and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse.(21)  It also embraces expression that may be regarded by some as deeply offensive.(22)  The right covers communications that are both verbal and non-verbal, and all modes of communication, including audio-visual, electronic and internet-based.(23)

Under 19(3) of the ICCPR, the right to freedom of expression may legitimately be subject to certain restrictions. A three-part test is used to assess whether such a restriction is justified: (i) the restriction must be provided for in law; (ii) it must pursue a legitimate aim; and (iii) it must be necessary to protect a legitimate aim.(24) The ICCPR provides an exhaustive list of legitimate aims, namely the rights or reputations of others or national security, public order, public health or morals. A similar test applies to the right to freedom of expression as guaranteed under other legal instruments.

In relation to the first step of this tripartite test, the requirement that a restriction be “provided by law”, the UNHRCtte provides the following guidance:

For the purposes of paragraph 3, 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 and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution.(25)

The requirement that a restriction of freedom of expression be ‘necessary’ for a legitimate purpose implies that the restriction is proportionate. The UNHRCtte notes the following:

Restrictions must not be overbroad. The Committee observed in general comment No. 27 that ‘restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected…The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law’.(26)

The Jordanian Court of Appeal heard a case concerning an article written and published by a journalist about a person involved in a case in the Shari’a Courts in Jordan, about which the journalist obtained information through a source at the Court. The claimant in the case argued that their right to privacy was breached. The Court viewed that the case concerned the competing right to freedom of expression in the course of journalistic activity and the right to privacy. The Court noted that the journalist wrote the article in the form of a news piece and did not mention the name of the claimant. Basing their decision on Art. 15 of the Constitution on the freedom of the press and publication being protected within the limits of the law, and article 19 of the ICCPR, the Court held that the journalist acted “within the framework of a journalistic investigation, related to the common good and in the public interest, which is a legal duty.” (27)

Freedom of expression online

Article 19(2) of the ICCPR stipulates that the right to freedom of expression applies regardless of frontiers and through any media of one’s choice. General Comment No. 34 further explains that article 19(2) includes internet-based modes of communication.(28)

In a 2016 resolution, the UN Human Rights Council (UNHRC) affirmed that:(29)

“[T]he same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”

While freedom of expression is protected by a considerable body of treaty law, it can also be regarded as a principle of customary international law, as evidenced, inter alia, by how frequently the principle is enunciated in treaties, other soft law instruments and constitutional guarantees.(30) Many human rights treaties, including those dedicated to the protection of the rights of specific groups — such as women, children and people with disabilities — also make explicit mention of freedom of expression.(31)

United Nations

The United Nations enshrined the right to freedom of expression in international law in 1948 with the Universal Declaration of Human Rights.  Article 19 states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”  This was the foundation of what later became article 19 of the ICCPR.

The ICCPR is not the only treaty in the United Nations framework to guarantee the right to freedom of expression.  For instance:

• Article 15(3) of the ICESCR specifically refers to the freedom required for scientific research and creative activity, providing: “The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.”
• Articles 12 and 13 of the UN Convention on the Rights of the Child (CRC) contain extensive protections relating to the right to freedom of expression enjoyed by children.
• Article 21 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) contains extensive protections relating to freedom of expression and access to information.

It is therefore clear that the right to freedom of expression is firmly entrenched within the United Nations system, both as an important right on its own, as well as a crucial enabling right.  For example, General Comment No. 25, in the context of the right to participate in public affairs, voting rights and the right of equal access to public service, noted:

Citizens can also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves.  This participation is supported by ensuring freedom of expression, assembly and association.(35)

In this context, a landmark decision in Kuwait in 2006 held that fifteen clauses of the Public Gatherings Law (No. 65 of 1979), which required prior permission from authorities to hold public gatherings, were unconstitutional. While the case concerned the freedom of assembly in the form of public gatherings, the Court made explicit reference to the freedom of expression and used it as an example of a right that is often attempted to be restricted using vague wording masked as limitations and stated that the legislature is restricted in passing restrictive laws that seek to limit the exercise and enjoyment of fundamental and constitutional rights.(36)

Many countries in the MENA region are members of one or more regional human rights systems, including the African Charter on Human And Peoples Rights (with its African Court on Human And Peoples’ Rights), and the Arab Charter on Human Rights,(37) which has no Court as yet.

In 2013, the League of Arab States (LAS) adopted a Statute for the Arab Court of Human Rights, with a proposed jurisdiction over human rights complaints brought by Member States against other States. Complaints could also be brought by non-governmental organizations, if the relevant State additionally accepted that jurisdiction, but not by individuals. States would be able to accept the Court’s jurisdiction generally, or with regard to specific disputes. The agreement for the Court has since been ratified by Saudi Arabia, but will not enter into force until one year after it has been ratified by seven States.(38)

A number of decisions from the Egyptian Constitutional Court during the 1990s, which were perhaps its most active and formative years in terms of advanced jurisprudence on par with international human rights standards, show both what is, or was, possible in terms of positive rendering and protection of the freedom of expression. It also, sadly highlights the regressive jurisprudence that has resulted since, throughout the region.

The Supreme Constitutional Court of Egypt struck down Section 2 of Art. 123 of the Criminal Procedures Code relating to how journalists published information they investigated. In its decision, the Court emphasised the importance of freedom of expression in allowing the public flow of information and not requiring them to provide evidence of their information prior to publication.(39)

However, the UN human rights system has various means for protecting human rights, including freedom of expression, globally, which fully apply in these regions.

New Challenges posed by the Rise in Digital Technology

The rise of digital technologies poses a number of novel challenges for human rights protection. This module covers some of the most pressing issues in promoting human rights protection in the digital age:

• What obligations do states have in respect of ensuring access to the internet and guaranteeing ‘net neutrality’?
• What are the international standards regarding privacy and data protection and what is meant by the ‘right to be forgotten’?
• How should the law of defamation be applied to digital communications?
• What are the international standards on regulating hate speech and what challenges does the rapid spread of information on social media platforms pose for this issue?
• What human rights challenges have accompanied the growth of cybercrimes and the often heavy-handed reaction of governments to this problem?
• How should the issue of misinformation and disinformation be addressed in a rights-compliant way?
• To what extent is it legitimate to restriction freedom of expression so as to protect national security?
• What are the international standards on the protection of journalists and what novel challenges exist for them in the digital age?
• What recourse do United Nations mechanisms provide for state abuses of human rights?

Conclusion

The right to freedom of expression is firmly established in international human rights law.  Although digital technologies have amplified our ability to express ourselves, their impact on freedom of expression has also raised novel challenges, with particular consequences for journalists and the media.  Rather than being eclipsed by these developments, international standards on freedom of expression have been evolving to address new challenges posed by new communications technologies. As a result, international human rights law plays as important a role as ever in ensuring that the right to freedom of expression is respected, protected and fulfilled, giving individuals a powerful tool to advance their rights.

• 1. Constitution of Algeria 2020, https://constituteproject.org/constitution/Algeria_2020?lang=en#s1
• 2. Constitution of Egypt 2014 (amended 2019), Preamble. https://constituteproject.org/constitution/Egypt_2019
• 3. Constitution of Lebanon 1926 (amended 2004), Part 1B. https://constituteproject.org/constitution/Lebanon_2004
• 4. See article 38 of the Statute of the International Court of Justice (1948) (accessible at https://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf) which documents the four recognised sources of international law.
• 5. General Comment No. 34, Article 19: Freedoms of opinion and expression, 12 September 2011, CCPR/G/GC/34 at para. 7 (accessible at: http://undocs.org/ccpr/c/gc/34).
• 6. See for example, the Supreme Court of India’s judgment in State Of West Bengal vs Kesoram Industries Ltd. And Ors, Appeal (civil) 1532 of 1993 (2004) (accessible at: https://indiankanoon.org/doc/879535/).
• 7. Constitution of Algeria 2020, Art. 159. https://constituteproject.org/constitution/Algeria_2020#s820
• 8. Constitution of Bahrain 2002 (amended 2017), Art. 121. https://constituteproject.org/constitution/Bahrain_2017#s546
• 9. Constitution of Egypt 2014 (amended 2019), Art. 93. https://constituteproject.org/constitution/Egypt_2019#s311
• 10. Constitution of Egypt 2014 (amended 2019), Art. 151. https://constituteproject.org/constitution/Egypt_2019#s491
• 11. Constitution of Algeria 2020, Art. 198. https://constituteproject.org/constitution/Algeria_2020#s957
• 12. Court of Cassation of the Hashemite Kingdom of Jordan, (Criminal Division), No. 758/1998, cited in Journal of the Jordanian Judiciary, 11:279; No. 101/1964, Council 5/12/1964 (also referred to in the Journal of the Jordanian Judiciary, 11:216)
• 13. Court of Cassation (al-Dāʾira al-Ḥuqūqīyya), No. 818/2003, No. 4309/2003, Council 22/04/2004, Publications of the Center for Justice
• 14. Court of Cassation (al-Dāʾira al-Ḥuqūqīyya), No. 94/667, Journal of the Bar Association (1995), p. 817; Court of Cassation, No. 2353/2007.
• 15. Amman Magistrate’s Court, No. 3555/2013 (2014).
• 16. Amman Court of Appeal, No. 4667/2016.
• 17. Court of Cassation, Jordan, No. 1302/2016.
• 18. Constitutional Court of Jordan, Interpretive Decision No. (1) of 2020.
• 19. Constitution of Morocco 2011, Art. 55. https://constituteproject.org/constitution/Morocco_2011#s263
• 20. Constitution of Tunisia 2014, Art. 20.
• 21. UNHRCtte, General Comment No. 34, above n 3 at para 11.
• 22. Id. at para 11. For further discussion on this, see Nani Jansen Reventlow, ‘The right to ‘offend, shock or disturb’, or the importance of protecting unpleasant speech’ in Perspectives on harmful speech online: A collection of essays, Berkman Klein Center for Internet & Society, 2016 at pp 7-9 (accessible at: http://nrs.harvard.edu/urn-3:HUL.InstRepos:33746096).
• 23. General Comment No. 34, above n 3 at para 12.
• 24. For a fuller discussion on how freedom of expression may be legitimately limited, see the training manual published by Media Defence on the principles of freedom of expression under international law: Richard Carver, ‘Training manual on international and comparative media and freedom of expression law’ at pp 14-16 (2018) accessible at: https://www.academia.edu/27961726/Training_manual_on_international_and_comparative_media_and_freedom_of_expression_law).
• 25. General Comment No. 34, above n 3 at para 25.
• 26. Id. at para 34.
• 27. Court of Appeal, Hashemite Kingdom of Jordan, No. 45694/2009.
• 28. Id. at para 12.
• 29. UNHRC, ‘Resolution on the promotion, protection and enjoyment of human rights on the internet’, A/HRC/32/L.20 (2016) at para 1 (accessible at: https://digitallibrary.un.org/record/845728?ln=en).
• 30. Carver above at n 8 at p. 5.
• 31. Id. at p 5.
• 32. For more see Washington Post, ‘There’s a worrying rise in journalists being arrested for ‘fake news’ around the world’ (2019) (accessible at: https://www.washingtonpost.com/world/2019/12/12/theres-worrying-rise-journalists-being-arrested-fake-news-around-world/) and Freedom House, ‘The Rise of Digital Authoritarianism: Fake news, data collection and the challenge to democracy’ (2018) (accessible at: https://freedomhouse.org/article/rise-digital-authoritarianism-fake-news-data-collection-and-challenge-democracy).
• 33. Joyce Hakmeh, “Cybercrime Legislation in GCC Countries,” Chatham House, https://www.chathamhouse.org/2018/07/cybercrime-legislation-gcc-countries/freedom-expression-online-under-gcc-cybercrime-laws.
• 34. Transnational Digital Repression in the MENA Region, (POMEPS) (accessible at: https://pomeps.org/transnational-digital-repression-in-the-mena-region).
• 35. UNHRCtte General Comment No. 25 at para 8 (1996) (accessible at: https://undocs.org/Home/Mobile?FinalSymbol=CCPR%2FC%2F21%2FRev.1%2FAdd.7&Language=E&DeviceType=Desktop&LangRequested=False).
• 36. Decision No. 01/2005, Kuwaiti Constitutional Court
• 37. The current 16 Member States of the Arab Charter on Human Rights include: Algeria, Bahrain, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Palestine, Qatar, Saudi Arabia, Sudan, United Arab Emirates, and Yemen. Syria has been suspended since 2011. Comoros, Djibouti, Oman, Morocco, Somalia, Tunisia have not yet ratified the Charter. http://www.lasportal.org/ar/humanrights/Committee/Pages/MemberCountries.aspx
• 38. English Version of the Statute of the Arab Court of Human Rights: https://acihl.org/texts.htm?article_id=44&lang=ar-SA
• 39. Egyptian Supreme Constitutional Court, Decision No 37/1993, issued 6 Feb, 1993.