Recently, the slogan “against repression” has emerged in protest to the frequent summoning of activists – usually for interrogation in the Cyber Crimes Bureau based on the Public Prosecution’s orders – on the basis of their statements on social media.

In parallel, rights organizations have issued a number of statements including a list of people who have been prosecuted for such statements. This created the impression that the repression is targeting social media activists in particular and therefore put the focus on the “repressive” means of the aforementioned bureau. While I do not wish to play down the matter, a close examination of the outcome of these summons reveals that they are merely another means of enabling the prevailing system to reinforce (or perhaps renovate) its foundations, a means made necessary by technological developments that have empowered the general public to express opinions when exercising this freedom was previously effectively restricted to traditional media. While it is easy to subjugate traditional media operators (they are few) to the exigencies of the political system and its red lines, effective means to deter users of new technologies from flouting these exigencies needed to be created.

This article aims to conduct a comprehensive review of all areas where freedom of expression is being infringed upon in order to complete the picture and render it accurately. In fact, the key determinant in how cases of freedom of expression are determined is the dignitaries system [nizam al-maqamat] and the sanctities and sensitivities connected to it. This system casts dense shadows not only over the issues connected to it but also over all other issues because of the practices that emerge from it and become essential to any prosecution related to freedom of expression.

 

The Dignitaries System: A Key Determiner of How Freedom of Expression is Approached

By “the dignitaries system”, I mean the system in which first consideration is always given to the dignitary – whether political or religious – who must be respected. Subsequently, any affront to any of these dignitaries is considered a condemnable, unjustifiable act. Such an act is usually considered an expression of a political “campaign” against this dignitary to undermine them or their national role, or create conflict among the nation’s various constituents. Furthermore, any such affront is usually considered a provocation of the dignitary’s followers that must be immediately remedied to affirm the dignitary’s importance and prevent any repetition. Of course, given the gravity of restricting freedom after the fact, the dignitaries are also in many cases safeguarded from affront preemptively, as we shall explain below.

 

Prior Censorship: Preemptively Protecting the Dignitaries

Prior censorship in the areas of film and theater remains central in this regard. The best evidence of this is the pledge that film producers are asked to sign in order to obtain a production license, a pledge not to impinge on any “religious, political, or social sensitivity” and, in practice, any symbol or dignitary.[1] Hence, the censor’s primary role is to ensure that all artistic works respect the dignitaries as a condition for production and screening. This applies to films that could address the events of Lebanon’s Civil War, acts of corruption, or any action involving any one of the dignitaries.

To understand this, we need only compare the censors’ approval of the screening of the film The Insult with its rejection of the film In This Land Lay Graves of Mine even though both films addressed one of the war’s most heinous massacres, the Damour Massacre. The former avoided offending any Lebanese political or social sensitivities, placing responsibility for the massacre on the Palestinians alone without mentioning any Lebanese accomplice. The latter, on the other hand, took a more honest approach to the historical events, placing responsibility for the massacre on a number of these quarrelling dignitaries. Hence, the film had to be banned. The challenge (retrial) to the ban is still pending before the State Council, which dismissed it once before on the basis that it would provoke sectarian hostility.

Similarly, this power has spawned practices that involve sectarian authorities (Dar al-Fatwa and the Catholic Information Center) in censorship work. Even though the law governing censorship over screening films makes no mention whatsoever of any of these authorities and some of them are not part of the state structure, the censors in the security apparatus have consulted them systematically. In some cases, the censors went beyond coordinating with them internally and asked people to obtain approval from these authorities in order to be granted screening permits.

No less grave are the laws that ban public servants from expressing their opinions without authorization from their superiors. The danger of this prohibition lies in the fact that it restricts the group knowledgeable of the practices prevailing within the administration from speaking. Subsequently, it shrouds the work of the public departments (and, in practice, the ministers and political dignitaries connected to them) in secrecy. This guarantees an environment conducive to corruption, mismanagement, and hierarchy and hostile to accountability. The best examples of this include the attack in 2017 and 2018 on Jean Ellieh, the head of the Administration of Public Tenders, for stating information about a number of tenders.[2] Hence, rather than the person exposed by the information being prosecuted, the official who expressed the information faces accusations and perhaps punishment.

In two circulars issued by the minister of justice, he warned that this prohibition applies to judges too, ensuring an environment conducive to the continuation of practices of interfering in and mismanagement of the judiciary (including practices by the minister) without any protest. Remarkably, while activists very vocally protested the public prosecutor’s decision to close the Facebook page of one activist because he attacked religious rites, the circular that coincided with that decision remained on the margin of public debate, being treated as a normal matter not warranting any condemnation or protest. The summoning of an activist to be questioned about specific statements was apparently interpreted – in the court of public opinion – as an act graver than silencing all judges even though judges’ freedom of expression and assembly constitute a guarantee of their independence according to the United Nations’ charters.

Other preemptive measures include the laws governing the establishment of traditional media outlets. This is because of, firstly, the perseverance with the licensing system for establishing these outlets and, secondly, from the “concession” [imtiyaz] system. The latter applies to daily and periodic political printed publications, for which no new permit can be issued. Hence, whoever wants to publish a printed political publication must buy or rent a “concession” at extraordinary financial cost. While this system has been justified by the finite nature of Lebanon’s advertising market, this argument is totally refuted by the fact that the system is not applied to non-political printed publications.

This same applies to the audio-visual media outlets per the licensing conditions stipulated in Law no. 383 of 1994, which have led, in practice, to a kind of quota-sharing between the sectarian leaders.

 

Sensitivity in Response to Affronts to the Dignitaries

Another, no less dangerous aspect of the dignitaries system is that an affront to any dignitary requires a strong response just as we would respond to an impingement on things we consider sacred (e.g. rage and condemnation). At its core, such an affront is considered a questioning of the sanctity, power, or legitimacy of this dignitary, and his supporters must respond firmly to prevent any such questioning in future. Of course, the reinforcement and entrenchment of the dignitaries system leads to an expansion in the definition of the acts that constitute an affront to the dignitaries. Hence, they include acts directed toward not only particular people or symbolic figures but also people connected to them in one way or another, depending on the power of the dignitary concerned.

On this basis, we have recently witnessed the emergence of the term “the era” [al-‘ahd], which has come to denote more than just the president of the republic. Rather, anyone connected to the president, such as ministers, MPs, judges, mayors, and syndicate presidents, or wishing to connect themselves to the president can invoke the term in order to acquire a certain immunity or greater protection. Subsequently, the Turkish power ship deal is encompassed by the protection entailed by “the era” because the ministry concerned is one of those connected to it. Similarly, any protest by judges against the politicization of the judicial appointments and transfers or against the talk of abolishing their mutual fund becomes an attack on “the era” because the Ministry of Justice is connected to it.

We see the same with regard to religious symbols: affronts deemed unacceptable are not only those impinging on a religious belief but also those that impinge on any of the saints or patriarchs, or even the clerics. For example, the simplest of jokes made by activist Charbel Khoury at the expense of Charbel Makhlouf, one of the most important saints for Maronites, becomes a grave attack on the entire Maronite sect. Similarly, the portrayal of a fictional Druze cleric in a nonideal manner in late director Randa Chahal Sabag’s film The Kite becomes an attack on the sect (Druze protested in front of the Al Jadeed television station to block the film’s screening).

This holds true whether the affront is well founded or unfounded. In fact, the reaction is likely to be more violent when the affront is well founded, just as it becomes more violent the stronger the dignitary being called into question is. Moreover, while the expression of this sensitivity should presumably be spontaneous, the fierce competition between the dignitaries means that the reactions are often contrived or organized. One example is the “popular” protests by Parliament Speaker Nabih Berri’s supporters against the perceived affront to the dignified status of Berri by the activists of the summer 2015 movement, or by Foreign Minister Gebran Bassil (who went as far as calling Berri a thug), or against Al Jadeed because it broadcasted news that these protestors considered offensive to Berri. Another example is the major attack against activists Charbel Khoury and Joey Selim on the basis of the joke about Charbel Makhlouf. The reactions even included death and rape threats and an actual assault on Khoury at his workplace before he was driven out of it.

In such cases, the expression of sensitivity can be coupled with various forms of drivel and dramatization portraying the affront to the dignitary as the fuse for igniting another episode of sectarian strife (or war) and, subsequently, one of the great dangers facing the pluralistic nation. This approach has become common when defamation complaints are filed, whereby any affront to a sectarian leader is considered akin to provoking sectarian hostility. The issue has reached the point where damaging public institutions associated with one sect or another is considered a provocation of such hostility. Another common form of dramatization is the perpetration of attacks and crimes against others (such as roadblocks or attacks on other groups) in order to show the enormous breach of peace and stability caused by the affront.

From this angle, the social role of the dignitary (and his followers) in confronting any affront to him resembles the role that a man (and his company) is supposed to play to confront any derogation from his masculinity or threat to his family’s honor, a role whereby his anger and recourse to criminal assault are portrayed as inevitable and legitimate (to one extent or another) consequences of the affront. This resemblance prompted The Legal Agenda to label this new category of crimes ‘modern honor crimes’ after the Public Prosecution offices abstained from prosecuting any of them.

 

Immediate Remedy

One of the most important repercussions of the dignitaries system is the effort to expand the scope of immediate remedies or even punishment as the gravity of the issue permits no time for contemplation. Any delay in responding would enable the offender to discuss the merit of his attack and, subsequently, to continue casting doubt over the standing of the target dignitary, causing further provocation. On this basis, the need to respect the “sensitivity” (i.e. to take immediate measures) overrides less pressing considerations concerning freedom of expression and fair trial.

Hence, the entrenchment and reinforcement of the dignitaries system imposes trends that run counter to the one that existed previously, especially before the 1975-1990 Civil War. While Lebanese legislations before that period tended toward reconsidering the criminal nature of prosecutions for press crimes (successive amnesty laws and parliamentary debates about abolishing the criminal nature of such prosecution) and toward abolishing any immediate punishment for such crimes preceding trial (preventative detention or the suspension of the publication), the legislations and practices prevailing during the last two decades have revived some of the immediate remedies.

The most prominent manifestations of this countertrend are the following:

• Tolerance toward moves to take the law into one’s own hands. Such moves can take various forms, such as physical assault or efforts to punish offensive media outlets by blocking advertising in them and thereby by depriving them of revenue.

• The application of preventative detention to crimes committed via Facebook or other social media, which do not constitute regular news sites, on the basis that such crimes differ in essence from crimes by print publications.

• The e-transactions law issued recently, which gave the Public Prosecution broad power to close websites for a period of one month, once renewable. Investigating judges were given similar power regarding a number of crimes. Hence, all websites are under threat of being closed by a decision by the prosecutor before any trial.[3]

• The repeated summoning of activists for interrogation about a status, like, or share on social media by the security agencies (including those working in the area of combating terrorism, such as Military Intelligence and General Security), and the associated customary practices. These practices include prolonging the waiting period before and after the interrogation and, most importantly, taking immediate measures like forcing the accused to delete the statement, close the page, or pledge not to repeat the offense or affront to the dignitary concerned as a condition for release.[4] A number of people have been arrested for several days or weeks, although this remains rare.

• The phenomenon of resorting to the summary (i.e. urgent) affairs courts. This phenomenon escalated after the summary affairs judge in Beirut issued the decision pertaining to the television program Ovrira. A number of judges have endeavored to preemptively intervene to cancel specific media material or prevent any publication that could damage somebody’s reputation. Although some judges have been sparing in accepting such requests, weighing the personal right to honor against freedom of expression, others have continued to accept them as soon as it is apparent that somebody’s reputation might be harmed, giving them precedence in general over freedom of expression.

 

Exceptional Procedures

To understand the dignitaries system, we must also examine the exceptional trial procedures adopted in this area. Here, the following two key points must be made:

Firstly, several dignitaries have resorted to asking the Cassation Public Prosecution to deal harshly and resolutely with the affront to them to deter the offender from repeating the offense or convince them to withdraw it. The Legal Agenda has documented many defamation complaints filed to this authority by political leaders and influential persons. While this trend relies on the comprehensive power granted to the Cassation Public Prosecution to investigate crimes, in practice it bogs this prosecution office down in minor misdemeanors that bear no gravity besides their impingement on a dignitary or political leader. Because of these cases, the Cassation Public Prosecution has become a prosecution office based on prerogative, namely the prerogative of these people to have their complaints investigated.

Secondly, jurisdiction over print publication crimes and corresponding crimes committed in the audiovisual media and on news websites is vested in special courts, namely the courts of publications. The Court of Publications is represented by one chamber of the Court of Appeal in each governorate. The most important one is the Court of Publications in Beirut because of the large number of cases filed to it.

While the existence of the Court of Publications has been justified by the need for the court to be specialized, the judges appointed to it have usually had no special knowledge of press crimes. The lack of specialization within the court has stripped it of its purpose and rendered it more akin to a court of appeal than to a specialized court.

 

A number of rulings and orientations indicate that the court has transformed into one to consecrate the dignitaries and protect them from any attack or insolence without any regard for the principles that govern freedom of expression, most importantly necessity and proportionality. Usually, the courts of publications have ended up punishing “defamation” irrespective of its causes or the circumstances surrounding it and, in particular, irrespective of whether the intent was good or bad.

 

This article is an edited translation from Arabic.

 

Keywords: Lebanon, Dignitaries System,  Social Media, Freedom of Expression, Joy Slim

 

[1] Nizar Saghieh, Rana Saghieh and Nayla Geagea, Censorship in Lebanon: Law and Practice, Beirut, 2010.

[2] Elham Barjas, “al-Mufakkira Tanshuru Muqabala ma’ Mudir ‘Amm al-Munaqasat Jean Ellieh”, The Legal Agenda, 19 May 2018.

[3] Myriam Mehanna, “al-Musharri’ wa-‘Jara’im al-Ta’bir’ al-Yawm”, The Legal Agenda, is. 57, November 2018.

[4] Joelle Boutros, “al-Tahqiqat fi Maktab Mukafahat Jara’im al-Ma’lumatiyya”, The Legal Agenda, is. 57, November 2018.