Sanction Regulation by the Supreme

On 18 March 2019, the Supreme Council for Media Regulation (“SCMR”) issued decision No. 16 of 2019 (the “Decision”)[1] with the sanctions and administrative measures that SCMR may impose on entities that are subject to the Law Regulating the Press, Media, and the Supreme Council for Media Regulation (“Law 180/2018”).[2] The Decision expands on some of the sanctionable acts provided under the Law in a move that draws even more criticism to SCMR’s role following the overhaul of Media Laws which took place last year.

Background

The Egyptian Constitution guarantees the freedom of thought and opinion while also providing for the right to expression “through speech, writing, imagery, or any other means of expression and publication”.[3] It states that “freedom of the press and printing, paper, visual, audio and digital distribution is guaranteed; Egyptians – whether natural or legal persons, public or private – have the right to own and issue newspapers and establish visual, audio and digital media outlets”.[4] In addition, the Constitution also provided for the establishment of a supreme media council – enjoying technical, financial and administrative independence – for the regulation of the press and media, as well as the establishment of a national press association and a national media association.[5] In this respect, Law 180/2018 was issued in August 2018 to regulate the press, media, and the operation of the SCMR. In parallel to Law 180/2018, the House of Representatives also passed the National Press Authority Law,[6] and the National Media Authority Law[7] (collectively the “Media Laws”).

• SCMR Formation and Responsibilities

The current SCMR was in fact established by virtue of a presidential decree issued in 2017.[8] However, Law 180/2018 provided that the current council shall continue to operate until the appointment of a new one. Accordingly, Law 180/2018 provides for the establishment of the new SCMR, its formation, goals, responsibilities, and resources. SCMR is formed by a presidential decree and the President appoints its Chairman, as well as a few of its members following the nomination of a number of candidates for the President to choose from.[9] As per Law 180/2018, SCMR’s responsibilities include providing opinions on bills, laws, and regulations; licensing activity; setting out standards and codes of ethics; and ensuring the protection of the rights of the public and the quality of the provided services. It also monitors content and has discretionary powers in taking the measures it deems appropriate in instances that are sometimes defined in Law 180/2018 while other times left are for SCMR to define in subsequent regulation. In addition, SCMR must approve foreign publications prior to their distribution in Egypt and sets out the rules for the collection of taxes on advertising through electronic websites, blogs, and accounts on social media. Other tasks that were assigned to the council include reconciliation of disputes between institutions, setting a mechanism for complaints by the public, undertaking necessary measures in cooperation with the relevant state bodies in the performance of some of its duties and referring violators to the competent legal entities.

• SCMR’s Power to Issue Sanction Regulations

Chapter 9 of Law 180/2018 gives SCMR the power to issue regulations on sanctions and administrative and financial measures that could be imposed on newspapers or media outlets in cases of violation of Law 180/2018. These sanctions are part and parcel of licenses that are issued by SCMR.[10] According to Law 180/2018, the SCMR sanction regulations could include (1) mandating that the institution removes the violation within a certain period of time at its own cost; (2) imposing a fine; and (3) temporarily or permanently banning the broadcasting or publication of media content. Moreover, Article (95) of Law 180/2018 gives SCMR the right to revoke media outlet and electronic website licenses if the licensee either violates a material provision of Law 180/2018 or does not practice its activity for one year following licensing. The council also has the right to bring lawsuits against violators of Law 180/2018.

• Penalties under Law 180/2018

In addition to providing for sanctions and measures that SCMR is to expand on by issuing its sanction regulations, Law 180/2018 provides for significant fines and criminal penalties. The fines range between EGP 50,000 to 3 million, while some acts give rise to prison sentences of one or five years.

The New Decision: The SCMR Sanction Regulations

The Decision issued this March builds on Law 180/2018 and expands the definitions of actions that could subject their perpetrator to measures including a ban on the publication or website and the suspension or revocation of the license. SCMR may observe a violation by monitoring content through committees that it forms, or through one of the members of the Council or its Chairman, or through citizen complaints. A surprising provision in the Sanction Regulations states that in performing their duties, media outlets, the press, and electronic website are held to a standard that is similar to that of a public servant with public interest considerations. Even more surprising is that a violation of this vague provision may give rise to a warning, or SCMR forcing the entity to issue an apology, or the payment of EGP 250,000 or its equivalent in another currency. The following are only examples of some of the sanctions and the acts that give rise to them according to the SCMR Sanction Regulations. In undertaking any of the above measures, the decision must be issued by SCMR Chairman upon obtaining the Council’s approval. The act must be investigated and the Council has the right to call in for questioning the persons involved. However, the Chairman could issue the decision solely in cases of emergency or for national security considerations, and then submit the decision before the Council for post review. SCMR may double the sanction in the event of repetition of an act. Measures imposed on an institution are taken into consideration at the renewal of the license, with licenses being valid for five years. The SCMR Chairman may also pardon an entity in the event of a violation or reduce the imposed measure. An individual or entity against whom a SCMR measure has been imposed may petition the measure before a SCMR committee, and this step must be exhausted prior to recourse to litigation.

Conclusion

The SCMR sanctions for press, media, and electronic content continue in the footsteps of a set of notorious press and Media Laws which gave the relevant regulatory bodies exaggerated discretionary powers in the approval, censorship, and punishment of press and media outlets, as well as electronic websites in general. The problem with the recent set of media legislation, therefore, does not only lie in the fact that they represent a clear infringement on the well-established principles of the freedom of speech and expression and the freedom of the press. Rather, the very broad definitions of electronic content under Law 180/2018 could provide a vague platform through which the rigid provisions of the SCMR Sanction Regulations could be extended beyond digital platforms that produce news content to include social media and sites that are owned by organizations and businesses.[11]   [1] SCMR Decision No. 16/2019 with sanctions and administrative measures that may be imposed on entities that are subject to the Law regulating the Press, Media, and the Supreme Council for Media Regulation issued by virtue of Law No. 180/2018, Egyptian Gazette, Issue No. 64 (cont.) (a), 18 March 2019. [2] Law No. 180/2018 regulating the Press, Media, and the Supreme Council for Media Regulation, Official Gazette, Issue No. 34 (bis) (h), 27 August 2018. [3] The Egyptian Constitution, Article (65). [4] The Egyptian Constitution, Article (70). [5] The Egyptian Constitution, Articles (211), (212) & (213). [6] Law No. 179/2018 on the National Press Authority, Official Gazette, Issue No. 34 (bis) (d), 27 August 2018. [7] Law No. 178/2018 on the National Media Authority, Official Gazette, Issue No. 34 (bis) (c), 27 August 2018. [8] Presidential Decree 158/2017 establishing the Supreme Council for Media Regulation, Official Gazette, Issue No. 14 (bis) (c), 11 April 2017. [9] SCMR membership includes a Deputy Justice from the State Council (chosen by the State Council), the Chairman of the Competition Authority, a representative from the National Telecommunication Regulatory Authority (chosen by its Head), and a public figure with expertise that is chosen by the President. The following entities nominate two candidates for the President to choose from: (i) the Syndicate of Journalists nominates two of its members, (ii) the Media Syndicate nominates two of its members, (iii) the House of Representatives nominates two public figures with expertise, and (iv) the Supreme Council for Universities nominates two representatives. Said entities must send their nominations three months prior to the end of SCMR’s term (which is four years, renewable once for a similar term). In the event that they fail to send these nominations on time, the President appoints candidates in the vacant positions according to the recommendation of the House of Representatives. [10] “SCMR issues regulations containing the sanctions, administrative and financial measures which could be imposed on press institutions, national press institutions, media outlets, and public media outlets, in the event of the violation of the provisions of this law, and how to challenge these [measures].  These regulations are an inseparable part of licenses and approvals […] that bind SCMR with these institutions.” [11] Law 180/2018 defines “audio, visual, or electronic media” as “any radio, television, or electronic broadcast that reaches the public, or certain segments of the public, in signals, images, sounds, drawings, or writings that are not of the nature of private correspondence, via any wire-based, wireless, digital, and other modern technologies or any means of broadcasting be it radio, television, electronic, or otherwise.” Law 180/2018 also clarifies the definition of an “electronic website” as “a licensed website, URL, or electronic application providing journalistic, media, or advertising content either in the form of text, sounds, still and moving images, or multimedia. It has a specific name, has a specific electronic address and domain, and is created or hosted or accessed through the internet.” The law also states that “media or advertising services that are commercial and electronic” encompass “content that promotes businesses, services, products, or persons through the internet.” Finally, Law 180/2018 prohibits the establishment, operation, or announcement of any media outlet or electronic website without first obtaining a license from SCMR, which determines the licensing conditions and requirements.