Click to expand Image Jordanian parliament in session. © 2016 Sam McNeil/AP Images

(Amman) – Proposed amendments to Jordan’s 2015 Electronic Crimes Law would overly restrict freedom of expression by stipulating criminal penalties for posting “fake news” or engaging in “hate speech” online, Human Rights Watch said today.

The amendments maintain criminal penalties for online defamation but, in a positive move, would eliminate pretrial detention for this offense. Authorities should seize the opportunity to amend the Electronic Crimes Law and other Jordanian legislation to protect freedom of expression. The amendments must be approved by parliament to become law.

“Peaceful expression shouldn’t be a crime in the first place,” said Michael Page, deputy Middle East director at Human Rights Watch. “Jordan should be removing legal provisions that restrict free expression, not adding more vague provisions like ‘fake news’ that chill critical public debate on important issues.”

The definition of “hate speech” as defined in the December 2018 amendments improves on a controversial, vague version that Jordan’s cabinet sent to lawmakers for approval earlier in 2018, but it nevertheless falls short of international standards. The amendments prohibit spreading rumors or “fake news” with “bad intentions,” but the new text does not define who determines what is a rumor or fake news or how to make such a determination.

Authorities proposed the new amendments in late December after the government of Prime Minister Omar Razzaz withdrew a previous set of amendments on December 9. The previous amendments, first proposed in 2017 and sent for parliamentary approval in early 2018, provided a widely criticized definition of “hate speech” that would have curbed online expression. Jordanian activists and protesters criticized the previous amendments, which they viewed as an effort to clamp down on their right to protest the Jordanian government’s economic austerity policies in 2018.

The proposed amendments would eliminate pretrial detention for online defamation by setting the maximum penalty at two years in prison. Under article 114 of Jordan’s criminal procedure law, people accused of crimes with set punishments of two years or less are not eligible for pretrial detention. The authorities have widely abused the Electronic Crimes Law to send journalists and others to pretrial detention for alleged slander or defamation.

The removal of pretrial detention would bring the Electronic Crimes Law closer to penal code statutes under articles 188-194 that govern punishments only for print or public slander and defamation. Unlike the penal code, however, which sets a statute of limitations of three months, the proposed amendments do not propose any time limitation on bringing a complaint for online slander or defamation.

The new amendments allow the accused, as a defense, the right to prove the truth of the claims if the claims refer to a government official’s official duties. But these provisions would not apply for claims about anyone else or under any other circumstances.

The UN Human Rights Committee, which interprets the International Covenant on Civil and Political Rights (ICCPR), has said that all defamation laws should include a ‘defence of truth.’

The new amendments also improve the definition of “hate speech” in the earlier draft amendments, removing the vague phrase “any speech or action that could incite discord” and adding a reference to incitement to violence. The new definition reads: “Any writing, speech, or work that intends to or results in spreading confessional or racist strife, calls for violence, or spurs conflict between sects or different components of the nation.”

The amendments also make “hate speech” a less serious crime than the previous proposal, lessening the punishment from one to three years in prison to not less than three months. By not defining the upper limit of the punishment, however, a person arrested for “hate speech” could be sent for pretrial detention.

In addition to hate speech, however, the amendments introduce a host of new, vaguely worded online activities subject to criminal penalty. These include “intentionally spreading or broadcasting with bad intentions rumors or fake news about a person or figure,” setting a punishment of between three months and two years in prison and a fine between 1,000 (US$1,409) and 2,000 ($2,818) Jordanian Dinars.

The amendments also prohibit “using an information network, website, or information platform to penetrate the personal life of others,” imposing penalties of between three months and three years and making people accused of “penetrating the personal lives of others” eligible for pretrial detention. The law does not define “rumor,” “fake news,” or “penetrating the personal life of others,” leaving these vague concepts open to the interpretation of police and prosecutors, who could then abuse them to limit otherwise lawful expression, Human Rights Watch said.

The amendments would also change the definition of “information platform” to include “applications.” This would include online personal chat applications on mobile phones that are largely used for private communication such as Skype, WhatsApp, or Signal, bringing them under the Electronic Crimes Law. Prosecutors could bring charges for slander, defamation, hate speech, or spreading fake news or rumors based on messages sent privately over a chat application.

While certain types of speech, including hate speech, can and should be restricted under international law, under article 20 of the ICCPR, the threshold for such restrictions is high. To meet this high bar, laws prohibiting or regulating hate speech should be restricted to “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”

Under the 2012 Rabat Plan of Action, on implementing article 20 while respecting freedom of speech, UN experts agreed that such laws should also make clear that incitement should be determined by several factors including context, speaker, and audience, and that such incitement should be likely to lead to the intended results.

In the new amendments, neither the proposed definition of hate speech nor the penalties for disseminating hate speech are sufficiently tailored to meet international legal standards. There was also no objective process outlined in the amendments to determine when speech could rise to the level of hate speech, and their passage would enable authorities to criminalize a wider range of legitimate and protected speech.

“Rather than inducing new vague concepts such as fake news, Jordan should move to eliminate any provisions that threaten citizens’ ability to engage in online conversations, even if it is about allegedly sensitive subjects,” Page said.