Defamation in the Age of Internet [un]Governance

Defamation in the Age of Internet [un]Governance - Civic Space

Customers in an internet cafe.

It was in October 2013 when Naeemeh Eshraghi, Ayatollah Khomeini’s granddaughter, brazenly posted a joke that she -as a kid- had allegedly recounted to her grandfather about widows of Iran-Iraq war martyrs. The joke was intensively condemned, and Eshraghi was summoned to a court in Tehran. Her Facebook page ended up being voluntarily closed in response‌ to an order she had received from Hassan Khomeini, the caretaker of the Mausoleum of Khomeini. Nearly a year later, Eshraghi reappeared on the news headlines due to a new joke attributed to her Viber account that facetiously suggested a bright side of polygamy in Islam; a move that was followed by an apology to avoid further controversy.

Eshraghi’s case was, however, not aberrant. In August 2014, Iranian Viber users started to circulate humorous messages of characteristics of Imam Khomeini. These featured characteristics were typically encompassed in the headers of most post-Islamic revolutionary school books and other reading materials. Hundreds of messages permeated Viber, WhatsApp, and Facebook groups in a matter of hours. Iran Police (NAJA) promptly warned about violators of freedom who were attempting to insult religious and cultural values of the country in cyberspace. Within the following couple of weeks, the Iranian Revolutionary Guard Corps (IRGC) announced the arrest of 11 individuals, purportedly through online surveillance. The users admitted having been deceived to disseminate offensive content to Iranian, Islamic values via various social media, including Viber and WhatApp.

The case -currently referred to as Imam Jokes– swiftly became the focal point of attention of power institutions. The Judiciary expressed concerns about the threats that such mediums posed to the state’s independence. It followed up on its eight-month old writ  to the Ministry of Communication regarding a three-month deadline to arrange smart mechanisms of filtering criminal content disseminated through Viber and WhatsApp. The writ was endorsed by the Committee to Determine Instances of Criminal Content (CDICC). They argued that lack of comprehensive content monitoring mechanisms would impermissibly challenge state’s sovereignty given that these platforms were hosted outside the country. The government, on the other hand, opted for a more moderate path and encouraged a community-driven, self-policing arrangement instead of direct intervention by the state. The Minister of Communication, furthermore, promised that launch of domestically-hosted alternative platforms was forthcoming.

Since the Internet penetrated Iran nearly twenty years ago, cyberspace has been governed by a growing set of laws and regulations that encompasses a broad spectrum of topics. However, overlaps between the jurisdiction of Internet governing agencies and conflicting interpretations of regulations remain rather commonplace. Whereas Principle 57 of the Constitution mandates the separation of powers and their independence in decision making, cyberspace sustains a point of contention among the Legislative, Executive and Judiciary. The Supreme Council of Cyberspace was convened in 2012 by the direct sentence of Iran’s Supreme Leader to bring representatives of the three powers aboard, and to act as the chief Internet policy making body. Despite said advancements, similar controversies over defamatory content disseminated through online communication mediums are likely to recur.

Under Article 21 of Cyber Crimes Law, online content and service providers are subject to implementing CDICC’s list of identified criminal content. The list is based off of clauses from miscellaneous legal documents. Imam Jokes disseminated through Viber application are deemed as defamatory under Article 514 of Iran’s Penal Code, which CDICC is technically authorized to flag for filtering. However, Viber services and servers fall out of  Iran’s jurisdiction. Therefore, the CDICC and Judiciary’s option remaining is to pressure the government (1) to develop targeted filtering mechanism of offensive content, or (2) to substitute said applications with domestically-hosted platforms. The latter has been extensively pursued over the past decade.

In addition, identifying defamatory content under Article 514 of the Penal Code is not too convoluted. It sets 6-24 month imprisonment for insulting the founder of Islamic Republic of Iran, Imam Khomeini, as well as the Supreme Leader in any manner. Such wording immediately broadens the room for over-interpretation and essentially leaves the case to the customs and norms of the society to denounce content as defamatory. In the face of defamatory content disseminated via foreign applications whose executives could not be prosecuted within Iran’s jurisdiction, the Internet governing authorities tend to place the onus on Iranian users. Harassment, intimidation and arrest of individuals generally charged with insult, dissemination of untruthful content[1], and purposefully disturbing national security through cyber communities[2] are consequences of such legal dilemma.

In the absence of concise regulations and clear jurisdiction of each Internet governing body, Iranian users will continue to suffer from the lack of education on what their ultimate rights and limitations are. To ensure the rule of law in cyberspace, in accordance with the state’s own definitions at the very least, there are measures that Iran may need to pursue. Implementing the principles of the Constitution to the fullest extent and abstaining from over-interpretation of currently enforced laws and regulations are minimal steps to start with.

[1] Penal Code, Article 746.

[2] Penal Code, Article 498.

Simin Kargar is a human rights advocate and researcher with specific focus on media policies and communication rights in Iran. Simin currently investigates the rule of law in Persian cyberspace to identify legal gaps and opportunities that affect securing the internationally recognized human right to freedom of expression and information.