Free Basics and the Open Internet: The Trial of Facebook in Egypt


28 April, 2016


Social media is an important platform for the dissemination of news and information as well as the shaping of public opinion. Yet Facebook as a social media platform remains influential on national and international policies. It seems to be the unleashed beast to most of the Arabic governments, especially in Egypt which has been taking tougher decisions against Facebook since the social uprisings that started on the 25th of January 2011.
 
Attempts to block Facebook in Egypt

There were many attempts to block Facebook in Egypt either through the administrative path or through the judiciary path.

The administrative path took place during the events of the 25th of January when the government proceeded to suspend the service on the 28th of January. After the 2011 attempt to block Facebook and its tough consequences, ex-president Mubarak and telecommunication companies were fined for the economic damage that occurred when mobile and Internet services were cut off. Therefore, the government never tried to block Facebook again but started to monitor social media platforms instead. However, the government stated that monitoring Facebook is not to restrict freedom of speech but to protect national security.

The judiciary path took place when Egyptian lawyers tried to have a formal adjudication to block Facebook. There were two lawsuits, though the first one was rejected by the administrative court in 2011. There was another attempt when an Egyptian lawyer filed a lawsuit to the administrative jurisdiction of the government to block Facebook. The lawsuit was based on the usage of Facebook as a platform of incitement to violence, cyber-terrorism and planning of cyber-attacks. It was claimed that FB was operating in Egypt without having a license. Though using the social media platform is guaranteed by laws and its users' privacy is protected by the constitution, Facebook cannot be banned, but it can be monitored by judicial order.

Article (57) states: The right to privacy may not be violated, it shall be protected and may not be infringed upon postal, telegraphic and electronic correspondences, telephone calls, and other means of communication which are inviolable and whose confidentiality is guaranteed. They may not be confiscated, revealed or monitored except by virtue of a reasoned judicial order, for a definite period, and only in the cases defined by law. 

So as there's no law that would permit the banning of Facebook through the legislation path, unless new laws are enacted to allow the banning of Facebook if it is a threat to national security.

Article (31) states: The security of cyberspace is an integral part of the economic system and national security. The State shall take the necessary measures to preserve it as regulated by Law.

The attempts of lawyers to fill a lawsuit against Egyptian authorities to ban Facebook were a 'trick' attempt to urge the need for new punitive laws to allow the banning of Facebook.
 
Parliamentary debate around banning Facebook

In early April 2016, a serious debate arose in Parliament, about banning Facebook for its dangerous impact. As for some, Facebook was implemented in Egypt to extort and threaten national security. But for some to ban Facebook is to isolate Egyptians and restrict their freedom of expression. The debate ended with the agreement to issue a new legislation "to contain the dangers of Facebook".

Facebook is on the horns of a dilemma as it might be banned by administrative court   adjudication or restricted by a new legislation that will deprive Facebook of its advantages due to national security reasons.

However, Article 86 indicates that protecting national security is a duty. The responsibility of all parties to uphold national security is guaranteed by the law. Therefore, national security is prioritized by the power vested in the constitution. Now the fate of Facebook in Egypt is compromised, either by the adjudication that will take place on the 26th of June 2016 or by the parliament through regulating new laws.
 
Shut down of free basic services in Egypt

Though Egypt allowed free basic services presented by Facebook, but this did not last long. So was this an arbitrary decision, or a legal right of the authorities?

Article (27): The NTRA (National Telecommunication Regulatory Authority) shall have the right to give the licensee consent to operate or offer certain Telecommunication Services at less than the approved prices for a limited period. In the case of breach of the rules of free competition or the quality of the service, the NTRA shall cancel such approval.

Article (30): Providers of more than one Licensed Telecommunication Service shall not subsidize any of these services in favor of another service. This prohibition is applicable even if the subsidized service does not require a license or even if the subsidy is allocated to a certain product related to the provided service. The Board of Directors shall have the right, in consideration of the rules stated in Article (2) to exempt a certain Telecommunication Service Provider from such prohibition provided that such exemption is issued by virtue of a justified time-limited resolution.

Regarding these two articles in law 10/2003 (The Egyptian communication law) which legalize Facebook's free basic services, the provider of these services is bound by two restrictions: 1- The rules of free competition, 2- Not to favor any of the provided services over another.

So, it is legal to support the free basic services as long as it doesn’t prejudice the free competition. Therefore, the reason for Egypt to shut down this service is to protect the financial rights of Telecom Egypt (a governmental company) as well as TEData (Internet Company which has 65% of market share and controls over 70% of the Internet bandwidth).

Considering that over three million users benefit the zero rate service, it is a great loss for TEData which extends to Telecom Egypt.
 
Refutation of Espionage Theory

Article 19 of the Egyptian Cyber-Crimes law: grants law enforcement agencies the right to submit a request to the prosecutor's office to block websites featuring quotes, numbers, photos, videos, and any other material, promotional or otherwise, if deemed a threat to national security. The request is referred to the criminal court, which must issue its ruling within twenty-four hours. So if Facebook represents a threat to national security then the government can block it with the power of this law without shutting down its free basic services.

Last September, Egypt has contracted with SEE Egypt to allow authorities Monitoring and Surveillance of private communication of all social media means including Facebook communications; this was openly declared by Egyptian authority.This can be the prove of the falsified claims that Egyptian authorities are trying to spy on Facebook's users, by demanding authorization from Facebook, in return regulatory and government authorities will allow the free basic service to operate.
 
 
Ms. Doaa Shendy Internet Policy Analyst, Lawyer Stanley group ( Egypt)