March 15, 2023
To the Communications and Media Commission of Iraq (CMC)
Subject: Regarding the Draft Regulation No. 1 of 2023 for Digital Content in Iraq
Dear members of the Board of Commissioners,
We, the undersigned civil society organizations, are writing to express our deep concern regarding the recently leaked draft Regulation No. 1 of 2023 for Digital Content in Iraq introduced by the Commission, which contains dangerous legal provisions that threaten the rights to freedom of opinion and expression, and restrict an array of rights and freedoms in the online civic space in Iraq.
Not only does the Commission's draft regulation violate the Iraqi Constitution which defines the competences of the various public authorities, it also includes several articles that violate Iraq’s international obligations to protect and uphold human rights, particularly under Article 19 of the International Covenant on Civil and Political Rights (ICCPR). The draft is characterized by the use of excessively vague terminology — such as “meaningful content” or “indecent content”— which gives the authorities very broad powers to determine what is permissible based on rules contrary to the values upon which democratic societies are based, represented in pluralism, openness, and tolerance. The draft regulation also bans a very wide range of online content which violates the right to freedom of expression and unduly restricts the work of journalists and the media.
Due to the serious implications of the draft regulation and its violation of Iraq’s Constitution and human rights obligations, we call on the Commission to immediately withdraw its draft. We also emphasize that any regulation of online content requires a comprehensive right-respecting approach and meaningful consultation with various stakeholders actors, including civil society, to ensure that such regulation does not turn into a legal pretext to restrict rights and freedoms online.
A serious attack on the Iraqi Constitution
The Commission refers to several articles in the Iraqi Constitution as well as Decree No. 65 of 2004 related to the creation of the Media and Communications Commission as a legal basis to justify its draft regulation. We note, however, that the Commission has exceeded its powers specified in Order No. 65, and has transgressed the competencies of the Iraqi Parliament set out in the Constitution, which Article 13 considers as “the preeminent and supreme law in Iraq and shall be binding in all parts of Iraq without exception.”
Article 46 of the Constitution stipulates that “restricting or limiting the practice of any of the rights or liberties stipulated in [the] Constitution is prohibited, except by a law or on the basis of a law, and insofar as that limitation or restriction does not violate the essence of the right or freedom.” This includes the right to freedom of expression enshrined in Article 38. Therefore, the right to freedom of expression cannot be restricted except by law or on the basis of it, provided that such limitation and restriction does not affect the essence of the right or freedom.
The Commission, however, granted itself the authority to prepare a draft regulation for online content which exceeds its mandate to regulate media and telecommunications services. We also note that the Commission does not have the mandate to impose penalties on internet users or criminalize digital content.
Furthermore, the Commission’s proposal in Article 24 of the draft regulation to “collect taxes, fees, and wages from social media companies for all promotion and advertising work” transgresses on the Parliament’s competence in tax. It also violates Article 28 of the Constitution which stipulates that “taxes and fees shall not be imposed, amended, collected, or exempted, except by law.”
Excessive use of vague terminology
While the Commission has introduced a number of definitions under Article 1 of the draft regulation, many of the terms used in the text failed to meet the requirements of accuracy and clarity when formulating legal rules. As stated in the UN Human Rights Committee’s General Comment No. 34: “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.”
In contrast, Articles 1 and 4 of the draft regulation contain imprecise and vague definitions such as “low” or “indecent digital content,” “purposeful digital content,” and “preserving the general rules of tact.”
Other vague and overly broad terms include “insulting the state,” “threatening national security,” violating “public and private taste” (Article 5), or “religious references and symbols” (Article 7), or “content that promotes the spread of immorality and debauchery” (Article 13).
We warn against the excessive use of such elastic and vague terms which gives the authorities a very broad discretion in regulating and restricting online content which they do not favor or agree with.
Banning expression and restricting media work
We are concerned regarding the excessive prohibition of a wide range of content protected by the rights to freedom of opinion and expression. Notably, the word “prohibits” appears more than 25 times in the text, reflecting the restricting and repressive nature of the draft regulation. Article 5, for instance, prohibits digital content that “insults the state, its public authorities, or natural and legal persons in Iraq.”
Article 20 also prohibits digital content that “offends the judicial authority or one of its formations or symbols with the aim of defamation, smearing, provoking public opinion, spreading lies or rumors, or refraining from implementing judicial decisions.”
These articles will unlawfully restrict the right of individuals to express their opinions and publish information related to public affairs. For example, Article 20 would prevent individuals from publishing accurate information about corruption or misconduct during trials on the grounds that such correct information led to defamation of a corrupt judge.
In the same context, the definition of defamation, stipulated in Paragraph 21 of Article 1, violates the right to freedom of expression and the right of individuals to know the truth. The draft regulation’s definition stipulates that online defamation is “the deliberate disclosure of highly private facts and events that can be subject to numerous interpretations, via digital media, in a scandalous or offensive way affecting a particular individual, thereby smearing their social image and reputation.” Such a definition may entail the prosecution of human rights activists, bloggers, political opposition, and other parties involved in public affairs, should any of them spread highly private facts and events that affect the public sphere or may expose serious abuses and infringements.
Furthermore, the draft regulation restricts some of the pillars of journalism. In fact, Article 4 stipulates that users: “must not disclose or leak official documents, nor the proceedings of any meetings without an authorization (from the CMC).” This Article makes investigative journalism a crime punishable by the CMC; the publication of reports and other public affairs-related documents will no longer be possible, significantly hindering the fight against corruption within the State, whereas monitoring public authorities is one of the main roles of journalism.
Similarly, Article 22 stipulates that: “All publication or propagation of digital content must be preceded by a verification of information accuracy, reliability, and credibility, i.e. they must solely emanate from official sources with clear citations of said sources. This Article goes against the fundamentals and ethics of journalism since designating official outlets as the only sources of information would mean a complete dependency of journalists on State institutions, whereas the Global Charter of Ethics for Journalists clearly states: “ respect for the facts and for the right of the public to truth is the first duty of the journalist.” This statement implies that it is a journalist’s duty to publish the truth after investigating and checking, even if it does not match the official version.”
Third, Paragraph 7 of Article 23 prohibits users from disseminating disinformation during electoral periods, be it to thwart the electoral process or incite public opinion into boycotting it. Under such terms, legitimate content may be restricted, e.g. calls from human rights defenders to boycott elections for particular considerations. However, the United Nations Human Rights Committee (HRC) stresses that the boundaries considered acceptable regarding freedom of expression “must not impede political debate, including, for example, calls for the boycotting of a non-compulsory vote.”
Finally, Articles 6 and 7 include a list of religious taboos, in order to safeguard sanctities, holy symbols and references pertaining to religions, doctrines, and sects officially recognized in Iraq against all criticism or opposing offensive opinions.
In the same context, the phrase “religions, doctrines, and sects officially recognized in Iraq” is problematic constitutionally speaking, as Articles 2, 42, and 43 of the Constitution mark the exclusion or preferential treatment of a particular religion, doctrine, or sect at the expense of another as unconstitutional, even when it is not legally recognized.
Similarly, legislations, infringing international standards related to the freedom of expression, may discriminate “in favor of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.”
Online content restriction based on gender
Article 5 includes a list of banned online content, including promoting homosexuality. The same prohibition is made again in Article 10, stating that users are not to publish “content promoting homosexuality, homosexuals, nor related activities, ideas, symbols, nor pictures under any shape or form”.
These Articles go against the principles of human rights, namely, equality and non-discrimination. This also contravenes Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Although the ICCPR allows some restriction on the freedom of expression for the sake of public morals, the gender-based ban remains entirely unjustifiable. In the Joint Declaration on Freedom of Expression and Gender Justice issued in 2022, the Special Rapporteurs on the Promotion and Protection of the Right to Freedom of Expression, have warned against States’ abusive uses of the public morals pretext “to restrict gender, sexual, cultural, or artistic expression of women and gender non-conforming people based on principles derived exclusively from a single tradition.”
New administrative restrictions on online content
The CMC imposed new administrative restrictions on users, platforms, and websites, requiring registration and authorization before posting online content. Article 28 of the draft regulation legally requires online websites and platform administrators to register. It mentions three tiers based on the number of subscribers: websites with less than 100,000 subscribers can register free of charge, whereas websites with 100,000 to 1000000 subscribers are charged a 35 USD fee and a 70 USD fee for pages with over a million subscribers.
On the other hand, the CMC requires users and companies that own social media to acquire an authorization to exercise advertising activities. In fact, Article 24 prohibits “both users and social media companies from engaging in any promotion or advertising activities without prior authorization from the CMC.” The Commission offered no precise definition of the term “user” or “follower,” i.e. it did not specify whether this concerns Iraqis residing in Iraq only or also includes those living abroad as well as foreigners residing in Iraq. Such ambiguity violates individuals’ freedom as well as the independence of companies providing digital services.
The legal requirement of registration and acquiring authorization to publish advertising content raises a number of legal and practical problems. These procedures are inapplicable in practice as it is possible to create pages, based abroad, with Iraqi-oriented content or such pages may be run by administrators from various countries.
Furthermore, these Articles contravene Article 19 of the ICCPR ratified by Iraq. In this regard, the HRC, in its General Comment No. 34 (2011), states that it is necessary that “regulatory systems should take into account the differences between the print and broadcast sectors and the internet.” While it is permissible to impose a television and radio media registration system, as these use the limited resources of Hz frequencies, online expression is subject to the principle of freedom. This was emphasized by the Special Rapporteurs on the protection of the right to freedom of expression: the regulatory approaches adopted in communications as well as in television and radio broadcasting are not compatible with the Internet, which requires different approaches.
Content blocking by administrative decision
By virtue of Paragraph 3 of Article 32 of the draft, the CMC enjoys the self-given competence to delete digital content following the issuance of a decision in this regard from security, educational, or cultural authorities, or from endowment offices.
Blocking content is a serious matter given its implications on the right of individuals to publish, receive, and solicit opinions, ideas, and information.
Hence, international standards require that judicial bodies shall issue such decisions. According to the Manila Declaration principles, intermediaries should not be required to restrict content unless ordered by an independent and impartial judicial authority. The Declaration equally states that the necessity and proportionality, within a democratic society, should be respected, are to be observed, among other requirements.
In his report on the role of digital access providers, the Special Rapporteur on the freedom of expression noted that “companies should ensure that all requests for content restriction and customer data comply not only with procedural and legal requirements specified under local law, but also internationally established due process standards. Given the intrusion on human rights, such requests should be authorized by independent and impartial courts or adjudicatory bodies.”
Thus, we can conclude that the CMC violated international standards by seizing the aforementioned competence, effectively jeopardizing judicial guarantees needed to safeguard the right to freedom of expression.
Denying the right to access information
The right to access to information goes hand in hand with freedom of expression, as per the requirements set in Article 19 of the ICCPR. This right enables individuals to form and express opinions and ideas, regardless of geographical borders. Subsequently, any illicit disruption or restriction of the right to access to information is equally a violation of freedom of expression.
Paragraph 4 of Article 19 of the draft regulation stipulates that “it is prohibited to promote or advertise mechanisms that encourage and allow users to access blocked content.” Preventing individuals from accessing blocked content contravenes Article 19 of the ICCPR, especially that the draft regulation’s prohibited content could include legitimate content, such as criticism of public authorities or investigations that expose spheres of influence in Iraq, as well as other digital content that could disturb the political, security, and judicial authorities. Therefore, the Special Rapporteur on the freedom of expression warned, in his 2015 report, of the danger of obstructing the free flow of information and ideas online. Namely, he recommended that States should ensure that individuals are able to express themselves online while remaining anonymous and avoid adopting real-name registration systems.
A limited approach to freedom of expression in the digital age
The Special Rapporteurs on the protection of the right to freedom of expression stressed the importance of adopting a comprehensive and sustainable approach to addressing the possible harms that may arise from digital content. Such an approach would be based on positive measures, such as media education and supporting fact-checking platforms and press institutions, in order to enhance the society's ability to deal with various modern technological challenges.
Media education represents a sustainable solution, as it shields community members and enhances skills such as criticism amongst youth in particular, and equips them with the necessary tools to understand digital content and how it is produced. This will reinforce their resilience and capacity to address disinformation and other content that compromises human rights.
In 2017, the Special Rapporteurs on the protection of the right to freedom of expression also highlighted the importance of supporting fact-checking platforms and press institutions by States, as a positive measure to address digital content. If supported under objective criteria and without prejudice to their editorial independence, these institutions can contribute to countering disinformation and raising awareness among individuals by providing them with reliable information.
The absence of positive measures in the draft regulation, alongside merely relying on punitive actions, reflects a narrow and ineffective repressive approach in regulating digital content.
Taking into account all the above mentioned considerations, we call on the CMC to withdraw the draft regulation as it poses a significant threat to the right to freedom of expression. We urge the CMC to adopt a participatory approach, mainly based on upholding individuals’ right to access information, engaging CSOs, and consolidating positive measures to regulate digital content instead of repressive measures that would never be efficient in light of technological developments.
Moreover, we would like to express our openness to all forms of fruitful cooperation to formulate laws and regulations consistent with international standards related to digital rights.
Kindest regards and respect,
Access Now, ARTICLE 19, Information Center for Research and Development, INSM for Digital Rights in Iraq, Iraqi Civil Society Solidarity Initiative (ICSSI), Kandoo, MENA Rights Group, Pen Iraq, Press Freedom Advocacy Association, Shakoufyan, SMEX, Tech4Peace