Press Law of 1995
The Palestinian Authority specifically sought to restrict the freedom of expression through the Press Law issued 25 June 1995. The law consists of 51 articles covering all aspects of publication, from regulating the press and other publishers by regulating the press and other publisher by issuing licences to limitations on the information which can be published.
This law was issued under the process for legislating under the Basic Law of the Gaza Strip 1962. This permits the executive council (the Palestinian Authority) to pass legislation in situations of emergency. These remain in force unless reversed by the Legislative Council. Appendix 2 deals in more detail with the process of legislating in the autonomous areas of the Occupied Territories.
Precis of the Press Law 1995
The English translation of the Press Law issued by the Ministry of Information differs slightly from the Arabic original in language and content - there is an additional article which is included with an explanation in this section - but the differences do not affect the substance and purpose of the provisions of the law. As the English translation by the Information Ministry states, questions of interpretation should be determined by the Arabic original.
This defines "Press Print" (publication and publishing house), press, journalist, printing house library, publishing house, distribution house, press office, advertisement office, study and research house, public opinion and research house, and translation house.
The law has an impact on all of these persons and institutions. Other articles considered below regulate who can act as director, editor or journalist of these institutions. Presumably, if these persons fall outside the requirements of the other articles of the Press Law they are regarded as not competent to publish news and information.
Article 2 - 8
These articles affirm the right to free press and the freedom of any individual to hold and express opinions, and detail the limitations.
The freedom of the press, is limited by the law, and by "public freedom, rights, public duties", including respect for privacy of others, (article 3). Article 7 clarifies these restrictions, in slightly different words, and includes a prohibition on the publication of materials which "hamper morals, values and Palestinian traditions" of children and teenagers. The extent of these limitations is not clear. They are left either for judicial interpretation or for the Minister of Information to introduce secondary legislation.
Unusually, article 4 details what the freedom of the press entails. However, this seems to have the effect of further restricting the freedom. It specifies that the freedom of the press covers providing and commenting on facts and information for Palestinian citizens. These citizens should have the right to publish their opinions, which appears to include a right of reply. Journalists can maintain the secrecy of their sources unless required by a court in a criminal case for national security, crime prevention or to "realise justice".
Article 8 appears to introduce a code of conduct for journalists; requiring respect for rights including a prohibition on publishing materials inciting violence, hatred or fanaticism. Journalists are obliged to report in an objective, balanced and accurate manner.
Article 9 - 10: Foreign Relations
These two articles prohibit relations with foreign countries and bodies. However, financial support from foreign non-governmental organisations is permitted only with approval from the Minister of Information. Relations with foreign bodies is also permitted but this is governed by something called the "foreign information media correspondence system". This has yet to be set up and it is unclear what this will entail. But this does not mean that all contact with the outside world will be controlled; indeed, article 6 provides that the work of foreign journalists will be facilitated by the official athorities.
Article 11 - 16: Qualifications and Responsibilities of Editors
The articles specify the minimum qualifications for an Editor-in-Chief, director of a research centre and owner of a publication. These are being a Palestinian and having no convictions for immorality or dishonesty. Additionally, editors and directors must have a university degree and experience relevant to their positions.
The Editor-in-Chief, owner of the publication and the author are responsible for the content of the publication, (article 12).
Articles 17 - 24: Issuing of Licences
Licences are issued by the Ministry of Information to individuals and Organisations meeting the above requirements. The process for making an application involves providing relevant details to the Director-General of the Ministry of Information (Article 19), this includes showing a minimum registered capital of 25,000 Jordanian Dinars for a daily publication and 10,000 Jordanian Dinars for a non-daily publication (Article 21). All existing publishing houses need to submit an application within 60 days of the date the law came into force, which is 90 days from the date the Press Law appears in the Official Gazette (Article 20). The -Ministry of Information must be notified of changes within 30 days of the alteration taking place (Article 22).
The Minister of information will, on the recommendation of the Director-General, make a decision within a maximum period of 30 days from the date of submission. A refusal can be appealed at the High Court of Justice (Article 19),
The licence will be cancelled and regarded as invalid if. no publication is produced within six months of the licence being issued, a daily has not been published for three consecutive months, a weekly for twelve consecutive months, and a periodical one week after the publishing house has not succeeded in putting out four consecutive editions (Article 23). The exception in all cases is if a reason is offered which is acceptable to the Minister (Article 23(b)).
Article 24 permits an owner to transfer his rights to a third party. Articles 34 - 36 requires a licence or approval for the sale, distribution and importation of publications.
Article 25 - 29 Publication of False Information
These articles deal with false information and the right of the person affected to seek a right of reply, legal action or apology.
The editor-in-chief is obliged to publish, as a "right of comment", the piece prepared by the person who is wronged by the false information. Suing in the courts is offered as an alternative to a right of reply - though this may just be the result of bad legislative drafting as it seems unlikely that the right to sue is taken away if the right to comment is chosen. If a foreign publication refuses to print the right to comment then it is open to the Minister of Information to take whatever action he deems appropriate.
It is unclear how false information will be determined. Certainly no mechanisms are envisaged by the law or have been set up by the Ministry. Also, there is a presumption that the information will affect an individual or a cohesive group. If this is not the case then it will be extremely burdensome for every individual to have an opportunity to comment on the information.
Articles 30 - 33: Notices
Clear information must be given on the publication stating the name of the author and where, when and who printed the publication (Article 30). Earlier disused or prohibited titles cannot be used (Articles 31 and 41 respectively) and neither can aliases, unless the author's name is also revealed (Article 32). An earlier article (Article 22) required the Editor-in-Chief to also provide his name, the place and date of issue, the cost and the name of the printers.
The owner of the print presses must keep records of the headlines of the printed articles and the authors, and must deposit four copies at the Publishing Department of the Ministry of Information prior to its distribution (Article 33). This clearly provides an opportunity for the Ministry to refuse to allow distribution. This point is discussed in further detail below.
Article 37 - 39: Prohibitions
Article 37, in particular, provides the grounds for the Ministry of Information to refuse to permit the printing, distribution, sale or Importation of a publication on the basis of one or more news
This article also provides the grounds for imposition of other sanctions available to the Ministry of information. These are: secret information about the police and security forces, confidential minutes of the Cabinet of the Palestinian Authority, information harmful to religion, morals and personal dignity and reputation, anything which aims to shake the belief in the national currency and court proceedings before the final verdict. Cigarette and drug advertisements and government corporations, universities and scientific research centres are excluded if prior approval is obtained from the Ministry of Information.
Articles 42 - 50: Law and Sanctions
Article 42 empowers a "competent court" to deal with violations. In Articles 19 and 20, the High Court is able to hear appeals against the Minister's refusal to licence an establishment. But these references appear to be isolated to the situation. The competent court must be something else.
Under this article, the Attorney-General will "investigate" the, I validity of powers". Considering the importance of this article it appears very unclear what the Attorney-General is being asked to do. The article effectively appears to leave the powers, penalties and the court for the determination of the Attorney-General. This could allow the Palestinian Authority to be develop a harsher regime without affording the protections of law.
Articles 43 to 48 deal with the penalties provided by law. These range from the publishing of an apology to a six thousand Jordanian Dinar fine or six month term of imprisonment. The penalties appear to be wholly disproportionate to the purposes of the law, and will have severe consequences on the willingness of people to publish. These penalties compound the problems in the law, especially in the fact that the law and the court procedure is left unclear.
Under Article 43(a) the court can require the publication to print the verdict free of charge, and may require its publication in two other newspapers. Failure to publish amounts to a contravention of the court order for which the penalties range from imprisonment to a fine of between 500 and 1,500 Jordanian Dinars. The same sentence can be imposed on an editor who fails to publish a correction after false or inaccurate information is published affecting an individual or the public interest.
If illegitimate sources are used to obtain information or a periodical obtains foreign non-governmental support without approval (i.e. Article 9 is contravened) then a sentence of four to six months imprisonment can be imposed or a fine of 4,000 - 6,000 Jordanian Dinars. The court can also order "reimbursement" to the Treasury for any money paid to a third person who is not seen as a defined legitimate source (Article 45). This final provision appears to cover situations of cheque-book journalism, so either the money is retrieved from the third party or a fine of the same amount is payable to the Treasury by the publishers.
If an illegal publication is printed by a publishing house, contrary to article 41, the court can sentence the offender to one month in gaol and a maximum fine of 1,000 Jordanian Dinars (Article 48).
Any publications containing information prohibited by Article 37 can be confiscated and the printing house suspended by an administrative ruling, presumably a decision by the Minister of Information (Article 47). This is "in addition to the other penalties prescribed". In fact, no other penalties for Article 37 are prescribed; all other articles appear to be restricted to violations of specific articles. However, the provision may be the means by which the court can use any penalty provided by the 1995 Press Law or by earlier laws.
Article 49 of the original Arabic version empowers the Minister of Information to introduce secondary legislation to implement the Press Law. This article appears as the final sentence of Article 50 in the English version.
Article 50 of the Arabic original rescinds Press Law No.3 of 1933 in the Gaza Strip and Press Law No. 16 of 1967 in the West Bank, or any other provisions "irrelevant to the provisions of this law".
The law therefore replaces two laws but retains the Penal Law of 1936, the British Defence (Emergency) Regulations of 1945 and the laws passed under the Egyptian Administration and, of course, the Israeli Military Orders are retained by the Cairo Agreement. It is unclear why these two laws were selected amongst all the laws which govern press and publications in the Occupied Territories. The effect of the Press Law of 1995 is to rescind the 1933 and 1967 law and to replace it with its own procedure for censorship. However, it retains the penalties which are available in other relevant laws and these can be imposed by the "competent court".
Article 51 requires all relevant authorities to implement the law from 30 days after it appears in the Official Gazette,
Analysis of the Provisions of the Press Law 1995
This section of the report does not seek to look at all the issues raised by the Press Law of 1995; the last section surveyed the law and offered some commentary on its various provisions and it should clear that the law establishes a process for regulating and censoring newspapers and other publications. This section will consider certain problems which are inherent in the law. These are not by any means the only issues, indeed each of the points made in the previous section warrant much discussion.
These problems fall into the following areas. Firstly, the Ministry of Information controls and can censor the press at each stage of the publication process. Secondly, broad and imprecise terms are used. This has the effect of permitting wide interpretation (i.e. censorship) to the extent that the press merely become organs of the Palestinian Authority. Thirdly, the powers of the courts and the sanctions available are unclear and require further definition. Fourthly, there are absolute prohibitions on carrying certain items of information. These issues are considered in turn below.
Control of distribution and importation
Although every sphere of publishing and printing is controlled, there is a particular emphasis on controlling the distribution of information. This is hardly surprising as this is the most effective means of controlling the dissemination of information which may be harmful to the interests of the Palestinian Authority.
Article 33(b) requires the person in charge of the print shop to deposit four copies of every publication at the Publications Department of the Ministry of Information before it is distributed.
It appears that under Article 37 the Ministry of Information can at this point refuse permission for distribution of the publication. Of course, if permission is refused the publisher has not only been denied the right to distribute but has also borne the costs of publication. Additional sanctions such temporary closure of the print shop and fines and imprisonment against responsible individuals may be available in certain instances. Though, there appears to be some uncertainty about when and which penalties apply. This is discussed below.
Article 34 requires two weeks notification to the Ministry of Information for importation of a foreign periodical. This appears to be a blanket condition even applicable to fairly innocuous information, such as children's comics. Additionally, under Article 35 importation of periodicals requires the institution to hold a special license which allows it to import, even if the institution is importing on one occasion only.
The law on importation of published materials has two requirements. Firstly, an institution which wishes to import must obtain a license from the Ministry to do so. Secondly, when it actually wishes to import a particular publication it must notify the Ministry of Information two weeks in advance. Similarly, the law concerning distribution requires the institutions which prepare, print, publish, distribute and hold publications to obtain a licence for doing so, and prior to distribution the Ministry of Information must be given four copies of the publication.
The law actually empowers the Ministry of Information to control the information which Palestinians receive through the written word.
Imprecise and broad provisions
Imprecise terms are used to create legal powers and obligations. As a great deal of interpretation, especially in issuing licenses and permitting distribution, is left to the Ministry of Interior the use of vague terms permits the Ministry to develop wide and oppressive interpretations which inhibit the transfer of information. These terms are peppered throughout the 1995 Press Law and examples are offered below.
The law has greatest impact on periodicals, which is defines as print... issued at intervals". This is understandable, as newspapers and magazines tend to be the most accessible of all printed media; they are cheap, aimed at the general populace and readily available. For these reasons, newspapers have large circulations and are extremely influential. All censorship or control of the press would focus on this form of printed material more than any other. The position of daily newspapers appear to be clear; the law regulates their contents, publication and distribution.
However, in the definitions of Periodical Print, the law also includes "Specialised Print", and this type of printed material lacks clear definition. It seems to cover any information which is printed on a regular basis, not just periodicals but organisations which prepare reports on a periodic albeit occasional basis. Whether the law covers virtually all print is unclear.
By way of explanation, the law defines specialised print as "specialising in one or more subjects in defined fields available for distribution" (Article 1). In other words, any other periodical directed at specialised subject(s) and/or audience. A specialised print is different from a daily or a non-daily (any periodical released weekly, or less or more frequently), as these are defined elsewhere, differently and appear to cover every periodical. What then is a "specialised periodical print"? The Press Law clearly aims to control a certain category of publication which is not a periodical. It seems the question of frequency does not relate to the publication at all, but to she publishing house. For example, a human rights research centre would probably not produce a particular tide on a regular basis. Instead reports would be irregular, variously titled and targeted at a particular audience. The term "specialised print" would relate to the fact that the research centre intends producing regular reports, rather than to a particular title.
Qualifications for publishers
Amongst the qualifications terms are used without any definition. For example, an editor-in-chief has to be a "journalist", havegood command of the language", and have "domicile in Palestine". These are all qualifications, enforced by law, for an editor and could result in the removal of a person from his post or used as a pretence to enforce some of the other sanctions. Yet these qualifications, or lack of them, are extremely unclear.
Powers of the Court and Ministry of Information
Article 42(a) states that "the competent court" deals with all breaches of the Press Law. The same article gives to the Public Prosecutor (presumably, the Attorney-General of the Palestinian Authority) the authority to investigate the "validity of powers and procedures prescribed by applicable penalty codes".
Similarly, the Minister of Information can issue secondary legislation to execute the provisions of the Press Law under Article 49 (Article 48 in the English translation), and all other competent authorities are empowered to enforce the law (Article 50).
The Minister of Information can administer the law as required by the law, i.e. issue licenses, grant permits, confiscate newspapers, etc. It appears the "competent court" will look into all violations, once a "public right law suit" has been issued. But, currently, under the 1995 Press Law, it can only hand down sentences for violations of Articles 9, 25, 26, 37 and 43.
As discussed in the precis of the law the articles concerning the law and court are so obscure as to be virtually unintelligible. What the "competent court" is and what powers it has is unclear, as is a "public right law suit" and how this is instigated. This, as explained in the last section, serves to diminish the protections afforded by law in the face of encroaching administrative power.
In relation to the violation of other provisions of the Press Law, it seems the public prosecutor is charged with determining what additional "powers and procedures" are available to the court and/or Minister of Information. The Minister of Information is then free to introduce secondary legislation to implement these additional powers and procedures.
The law gives a wide margin of appreciation to the Palestinian Authority, by requiring the question of the powers, penalties and court to be determined by the public prosecutor (Attorney-General) and Minister of Information. This could mean even more restrictions for the press and severer penalties for failing to adhere to conditions of the law. It also means that the actual litigation procedure and protection offered by a court are left vague.
A bsolute prohibitions on information
A series of absolute prohibitions are provided for in Article 37 of the law. These have been set out above and the possible effects of these provisions are discussed here.
Article 37(a)(i) specifies that no publication can carry "classified information on the police and public security forces, or their weapons, equipment, movements or training". It is clearly the concern of all states to protect national security, but because the law is imprecise it appears to extend beyond the usual realms.
Often the use of an Official Secrets Act or some similar instrument restricts employees, civil and public servants, from divulging information which is harmful to national security. However in the 1995 Press Law the emphasis is to penalise the publisher of the article and withhold distribution of articles it regards as harmful.
If an earlier law is used by the Ministry of Information, as is permitted under the Press Law and the President of the Palestinian Authoritys Decrees, (see note 18 above), then Order No.555 issued by the Egyptian Administrator Governor is also applicable to state security. This order makes secret any defence information, which includes "everything that affects military and strategic affairs". Such a broad definition of security information leaves little room for public debate.
This is a significant threat to the freedom of the press as the media is directly liable for informing the public of actions of government police forces. This raises questions about actions of security forces which threaten or violate human rights. Could the massive arrest campaigns be publicised? Are human rights organisations and the media denied the right to inform others of the treatment of those arrested, detained and interrogated?
The law violates the freedom of expression and undermine, democracy. If it is enforced as intended it will deny a host of other rights and restrict the activities of those organisations set up to protect the rights of others by removing their most potent weapon the power of information.
Order No.555 strengthens its provisions by having a system of punishment for those publicising "everything that affects military, and strategic affairs". The smallest fine is 100 Egyptian Pound and the possibility of "imprisonment for a period of not less than six months and not more than five years". The death penalty may be imposed on anyone passing secret information to a foreign country or working in the interests of a foreign country.
In relation to the powers under the law, earlier laws enforceable except where they contravene the 1995 Press Lay Since the latter legislation supplements the 1995 Press Law relation to Article 37, it appears that it is open for the Palestinian Authority to rely on both the 1957 and 1995 laws.
It is clearly open to the responsibility of all governments to decide what falls in the realm of national security, as it is with Palestinian Authority. However, elsewhere judicial review other legal mechanisms provide protection against too wide interpretation of such exceptions, by balancing state concerns the rights of individuals. This is particularly true of those countries which are signatories of international conventions protecting human rights. Unfortunately, no such constitutional or human rights exist in the autonomous areas so it is unlikely that the court will balance individual rights against state interests in this way.
Interestingly, security information is actually made available to Israeli authorities. The Cairo Agreement specifies in the minutest details what security arrangements should exist under Palestinian Police and there are joint reviews and sharing of information on security matters, so this measure appears to be even
more surprising. It clearly aims at suppressing public debate on security matters.
In addition to security, Article 37 prohibits the circulation of information which is harmful to "national unity". The problem with this provision, as with the security requirement is that the ambit is far too wide and the concept too vague.
This article also prohibits the publication of "minutes and details of closed door sessions of the Palestinian National Council and Cabinet of the Palestinian Authority". The emphasis in this provision, as discussed earlier, is rather to control the transfer of such information and punish the publisher.
A similar provision bans publicity which undermines confidence "in the national currency". Currently there exists no national currency exists so it would be virtually impossible to achieve this. Moreover, the provision shows a lack of appreciation of the way an economy functions; currency fluctuations depend on a range of economic factors, which can be undermined from within the autonomous areas or abroad. Restraining public debate in the autonomous areas would fail to achieve the objective of this provision, which is currency stability. When a Palestinian currency is available, it is essential that there is opportunity for public discussion and information about the economy, and this may affect, the state of the currency both positively and negatively. Unless the answers to economic stability have been found by the Palestinian Authority, it would not be clear what information would cause a destabilising affect on a Palestinian currency.
The issues outlined in this section illustrate some of the problems with the 1995 Press Law. By giving itself extensive power under the Press Law, by reducing judicial scrutiny, by creating a rannge of broad and ambiguous obligations for publishers, the Palestinian Authority will justifiably be seen as instituting a system censorship aimed at stifling free speech and press. Indeed, the powers created by the Press Law provide for the type of structure which would only be acceptable to an oppressive regime.
The Press Law is an extremely sorry indictment of the period under Palestinian rule. Its 51 articles seek to control the media, fundamentally undermining the freedom of expression. At the same time, it gives the executive sweeping powers and remains silent on the issues of judicial scrutiny and recourse to courts when rights have been infringed.
In Gaza, there was great hope that the onset of autonomy, even in the fragmented and distorted form envisaged in the Agreements, would offer a reversal of the history of occupation and oppression. Unfortunately the Press Law indicates that the Palestinian Authority has little intention to respect human rights or to establish the framework for democratic civil society.