The Jordanian Masarat for Development and Progress Institution publishes a position paper (and recommendations) submitted by a group of experts and journalists about the Press and Publication Law, the reform process, and democratic transformation. This was during the dialogue symposium organized by the institution on June 6 under the title “The Future of the Press and Publication Law” within the project of enabling environment to enhance democratic freedoms and rule of law in partnership with the Friedrich Ebert Foundation, Germany.

Introduction

Freedom of opinion, expression, and their means (journalism and media) are prerequisites for democracy. Access to information is a prerequisite for ensuring freedom of opinion and expression, and press and media freedom. Without accurate and reliable information, freedom of opinion, expression, and press and media freedom would be just opinions and impressions not based on facts.

The public’s right to knowledge and access to information is one of the most important pillars of the democratic building of any state in the world, based on the fact that effective citizen participation depends on information. Access to information is a fundamental tool in combating corruption and exposing government errors, enabling journalists, NGOs, and citizens to highlight errors and help address them. Access to information has become a basic human right for exercising other rights, and a prior requirement for each individual to participate in society and make wise decisions from among several alternatives.

The constitutional protection of freedom of opinion, expression, and freedom of the press, printing, publishing, and media is at the forefront of the Jordanian constitution, where Article 15 states:

    1.    The state guarantees freedom of opinion, and every Jordanian has the right to freely express their opinion through speech, writing, and all other means of expression, provided they do not exceed the limits of the law.
    2.    The state guarantees freedom of scientific research, literary and artistic creativity, and cultural, sports activities, provided they do not violate the law or public order and morals.
    3.    The state guarantees press freedom within the limits of the law.
    4.    Newspapers and media means cannot be suspended or their licenses canceled except by a judicial order in accordance with the law.

Among the most important international standards for freedom of opinion and expression is what is stated in Article 19 of the International Covenant on Civil and Political Rights. Jordan is a party to the Covenant (published in the Official Gazette on June 15, 2006), among 169 countries that have ratified it.

Article 19 of the Covenant guarantees the right to freedom of expression as follows:

    1.    Everyone has the right to freedom of opinion.
    2.    Everyone has the right to freedom of expression; this right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of their choice.
    3.    The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. Therefore, it may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
a) For respect of the rights or reputations of others;
b) For the protection of national security or of public order, or of public health or morals.

The “Three-part test” was introduced so that the restriction is legitimate:

    1.    Exceptional as per the law and not subject to expansion.
    2.    Proportionate to protect a legitimate goal and not a show of power, such as criminalizing criticism of the government (recent complaints by MPs and senators who used the law to shield themselves from criticism).
    3.    Necessary in a democratic society, meaning that the solution is only through using the restriction.

Jordan is also a party to the Arab Charter on Human Rights, where Article 32 states:

    1.    This Charter guarantees the right to information and freedom of opinion and expression, as well as the right to seek, receive and impart news, ideas, and information to others by any means and without regard for geographical boundaries.
    2.    These rights and freedoms are exercised within the framework of the basic components of society and are subject only to the restrictions imposed by respecting the rights of others or their reputation, or protecting national security, public order, public health, or public morals.

In September 2011, the UN Human Rights Committee adopted General Comment No. 34, the longest comment interpreting Article 19 of the “International Covenant on Civil and Political Rights”. The comment states, “Article 19 of the Covenant ’guarantees the right to access information held by public government bodies. States must make every effort to ensure rapid, easy, effective, and practical access to information controlled by the state in the public domain.”

“Freedom of opinion and expression includes the right to access information held by public bodies. To exercise this right, States Parties must proactively make

 information available to the public in an easy, immediate, effective, and practical way. They must also issue necessary procedures enabling individuals to access information, including enacting legislation that ensures freedom of access to information.

Article 19 organization, based in London, described information as "the oxygen of democracy", because "for democracy to function, citizens must be empowered to access information so they can make valued decisions".

The "April Uprising" of 1989, a protest against the government's decision at the time to raise the prices of oil derivatives, transportation, and basic food items, marked an important point in Jordan's democratic transformation. It became imperative to accompany this with political pluralism and freedom of expression and press freedom[1]. General parliamentary elections were held after a 33-year ban on parties.

With the democratic transformation, pluralism was established through:
1 - Pluralism of opinions by enacting the Press and Publication Law No. 10 of 1993.
2 - Party pluralism, Political Parties Law No. 32 of 1993.

Several related laws were also enacted, such as the High Court of Justice Law, the State Security Court Law with the possibility of all its rulings being subject to review by the Court of Cassation, and the cancellation of martial law.

Since then, Jordan has slowly moved towards "restricted democracy" as described by a Jordanian historian[2].

Historically, the Press and Publication Laws have been the primary tool of successive Jordanian governments to control and regulate the press. Since the beginning of the democratic transformation process, several Press and Publication Laws have been issued "ranging in their degree of alignment with human rights standards guaranteed in international charters"[3].

"Through a comprehensive review of press laws and regulations from 1920-2000, it became clear that they were

 derived from the Ottoman Press Law of 1909, and both the Ottoman Press Law of 1909 and the Palestinian Press Law of 1933 remained in effect in Jordan until they were repealed by the Press Law of 1953"[4]. Another example of the spirit of Ottoman laws and their influence on Jordanian legislation is that the Ottoman Copyright Law of 1910 remained in effect in Jordan[5] until 1992 when the Copyright Protection Law No. 22 of 1992 was issued.

As part of media reform efforts, the government approved the media strategy (2011-2015), which stipulated "ending freedom-depriving penalties in crimes committed through publications and opinion, providing clear and explicit texts to prevent detention and imprisonment in press and publication cases, and eliminating ambiguous terms in legislation that are open to more than one interpretation or explanation. The transition from criminal defamation and libel to civil defamation and libel, which would exempt the public prosecutor from the subject and require the public official to file the case in their personal capacity, and in case of imposing penalties, they must adhere to the principle of proportionality and minimize harm to freedom of expression."

It also stipulated priority in amending the following laws:
1- Press and Publication Law No. 8 of 1998.
2- Penal Code and its amendments No. 16 of 1960.
3- State Security Court Law and its amendments No. 17 of 1959.
4- Law on the Protection of State Secrets and Documents No. 50 of 1971.
5- Law on Violating the Sanctity of Courts No. 9 of 1959.
6- Journalists Syndicate Law No. 15 of 1998.
7- Audio and Visual Media Law No. 71 of 2002.
8- Cybercrimes Law No. 27 of 2015 (A draft amendment was submitted but was rejected by the House of Representatives on 19/2/2019 and is now in the Senate).
9- Right to Access Information Law No. 47 of 2007.

Commitment to ending freedom-depriving penalties in the Press and Publication Law and the Audio and Visual Media Law was achieved, but the rest of the laws were not amended.

It is worth mentioning that press misdemeanors in Jordan are not subject to appeal before the Jordanian Court of Cassation unless permitted or by a written request from the Minister of Justice for the benefit of the law, making judgments by the highest court of law in Jordan rare in this field.

The main criticisms of the current Press and Publication Law include:
1- Article 2 defines a journalist as a member of the Syndicate registered in its register who has taken up journalism as a profession in accordance with its provisions.
The Journalists Syndicate Law and the Press and Publication Law require that the journalist be Jordanian and a registered member in the practicing journalists' register. It prohibits non-journalists from practicing the profession or corresponding with foreign publications. The Journalists Syndicate occasionally asks the government not to deal with non-members in covering press conferences and events to "limit the violations and infringements committed by non-members against the journalism profession."
Mandatory membership in the Journalists Syndicate constitutes a violation of human rights charters. Article 20-2 of the Universal Declaration of Human Rights states: No one shall be compelled to belong to an association.
The Inter-American Court of Human Rights and several European courts have issued decisions regarding the illegality of mandatory membership in journalists' associations and syndicates.
The Inter-American Court of Human Rights, in an advisory opinion, said: "When the right to freedom of expression is violated... it is not only the individual's right (the journalist) that is violated, but also the right of all those 'receiving' the information and ideas". Mandatory membership might be acceptable for lawyers and doctors, but it constitutes a violation of freedom of expression if imposed on journalists. This decision came after a lawsuit filed by a journalist who was prevented from practicing the profession because he was not a member of the only Journalists Syndicate in Costa Rica. See: The Article 19 Freedom of Expression Manual, London 1993 p205.

2- Articles 4, 5, and 7 act as a Trojan horse for filing cases against journalists due to the elasticity of their terms, in addition to including professional ethics, which would have been better transferred to the Syndicate Law.
Article 4: Journalism freely exercises its mission in presenting news, information, comments, and contributes to the dissemination of thought, culture, and science within the limits of the law and in preserving public freedoms, rights, and duties, and respecting the privacy and sanctity of others' private lives.
Article 5: The publication must seek the truth and commit to accuracy, impartiality, and objectivity in presenting national material, human rights, values of the Arab and Islamic nation.
Article 7: The ethics and morals of the journalism profession are binding for the journalist, and include:
   

A. Respecting the public freedoms of others, preserving their rights and not compromising the sanctity of their private lives.

Consider freedom of thought, opinion, expression and access as a right of the press and the citizen alike.

C. Balance, objectivity and integrity in the presentation of the press article.

D. Refrain from publishing anything that would incite violence or call for division among citizens in any way.

E- Refrain from fetching or obtaining ads.

F- Commitment to the provisions and principles of the press code of honor issued by the union.

3- Arrest:

Since the Press and Publication Law does not impose penalties for imprisonment, it is not permissible to arrest in cases committed contrary to it, because the penalties are a fine. But that doesn’t prevent arrest if the trial is done by other courts, or contrary to other laws such as the Electronic Bullion Act.

In Egypt, as an example, Article (135) of the Code of Criminal Procedure states that “remand detention is not permissible for crimes committed by newspapers.” Article 41 of the Press Organization Law No. 96 of 1996 prohibits the pretrial detention of a journalist except in Article 179, penalties related to insulting the President of the Republic.

4- Unnecessaries: Different penalties for the same act.

Content, smear and humiliation The penalty is graded in the Penal Code, up from contamation, then slurf, and then smear, while the penalty is equal in the laws of publications and electronic crimes. Add to that, the slander and slander clause is to commit the act publicly and the non-public slander clause.

Publications Law:

Article 38: It is prohibited to publish any of the following:

D- What includes slevering, insulting or insulting individuals, or affecting their personal freedoms, or what includes false information or rumors against them.

Article 46/e - Anyone who violates the provisions of paragraph (d) of Article (38) of this Law, shall be punished by a fine of not less than five hundred dinars and not more than one thousand dinars.

The penal code

Article (358): Anyone who insults another with one of the images shown in Article (188) shall be punished by imprisonment from two months to a year.

Article (359): The slendering of one of the images mentioned in articles (188 and 189) as well as the slander of one of the images mentioned in Article (190) shall be punished by imprisonment from one week to three months or by a fine of five dinars to twenty-five dinars.

Article (360): Whoever deceives a person outside of slander and slandering in word or deed, face to face, or in written address him with him or with the intention of informing him about him, or by prolonging the tongue or a specific reference to him or with a thick treatment, shall be punished by imprisonment for a period not exceeding one month or a fine not exceeding ten dinars.

Article (190) Contempt: It is any insult or insult - other than insult and slander - directed to the aggressor face to face with words or movements or by writing or drawing that has not been made public or by telegraphic or telephone intelligence or by thick treatment.

Electronic Crimes Law No. 27 of 2015

Article (11):

"Anyone who intentionally sends, retransmits or publishes data or information through the information network, the website or any information system that involves slandering, insulting or contamation of any person shall be punished by imprisonment for a period of not less than three months and a fine of not less than (100) one hundred dinars and not more than (2000) two thousand dinars."

Article 49- Notwithstanding any provision in this Law or any other legislation:

A- 1- If it is the activity of the electronic publication to publish news, investigations, articles and comments related to the internal or external affairs of the Kingdom, this publication is obliged to register and license by a decision of the Director, and the owner of the electronic publication shall reconcile his situation in accordance with the provisions of this law within a period not exceeding ninety days from the date of notification of the director's decision.

G- The Director shall block unlicensed websites in the Kingdom if you commit a violation of the provisions of this law or any other law

Results

In light of the applications of the Press and Publication Law, Jordan's ranking in the two annual press freedom indexes, which are issued by Reporters Without Borders and Freedom House, ranked 120th out of 180 countries for the first and a "not free" country in the second index.

The Access to Information Act was also ranked 123rd out of 136 countries.

In short, any process of reform and real democratic transformation must start from guaranteeing freedom of opinion and expression and freedom of the press and media by translating the constitutional text of Article 15 and international standards for freedom of opinion and expression.

Recommendations

1- Commitment to what is stipulated in the media strategy to cancel the penalties that are negative for freedom in cases of freedom of opinion and expression.

2- Canceling arrest in cases of freedom of opinion and expression.

3- Canceling the mandatory membership in the Journalists Syndicate and making affiliation to it voluntary and not a mandatory corridor to work in the press and media.

4- Cancelling the validity of the Director of the Media Authority to block unlicensed websites in the Kingdom.

 

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