By Lawyers for Justice in Libya
A Guide to Freedom of Expression in Libya has been authored by Lawyers for Justice in Libya thanks to the assistance of International Media Support.
It is intended to provide support for media stakeholders and identify human rights recommendations for the Libyan State. It is available to download here.
The legality of current media regulatory institutions and authorities in Libya remains a highly contested subject. This section provides a chronological review of the institutions established following the conclusion of the 2011 uprising, providing context regarding their formation and information on the communications they have offered regarding media regulations.
The Higher Media Council (HMC)
NTC Decree 44 of 2012 established the HMC with the intent that it would regulate the media. The HMC’s responsibilities included drafting laws regulating media operations; issuing a code of ethics to govern media conduct; granting necessary licenses to media institutions; and considering complaints against media institutions.
The HMC was extremely unpopular, with criticism directed at the means by which members are appointed and the lack of safeguards to protect media diversity. Subsequent resolutions were passed as a result, passing responsibility for media regulation to the GNC.
Ministry of Media
GNC Resolution 13 of 2012 abolished the HMC and established a Ministry of Media, which the GNC was mandated to oversee through creating specialised committees.
These failed to materialise in any meaningful way. Instead, the GNC continued to play a direct role in media regulation.
The Government of National Accord (GNA) Ministry of Media
Currently, the GNA’s media governance is mandated to be carried out by its Ministry of Media 60 (MoM). In 2016, the MoM made public several communications which it published on its Facebook page relating to media conduct.
These communications have called on all media outlets to provide the MoM with their permissions, licenses, sources of funding and relevant audits 61 and to register with the MoM 62 .
The MoM has issued public communications ordering individual agencies to comply with these orders, making reference to the Publications Act 63 .
The MoM has also issued communications forbidding the broadcast of materials that depict the prophet Mohammed and his companions, seemingly complying with fatwas issued by Dar Al-Ifta 64 .
The legitimacy of the MoM communications is a contentious topic, not least due to the current political and legal fragmentation of the Libyan State. In addition, the communications issued by the MoM may have exceeded its legal mandate and violated supreme law (including the Constitutional Declaration), but have not yet been considered by judicial review.
FUTURE DEVELOPMENTS – THE CONSTITUTIONAL DRAFT
The most recently proposed Constitutional draft (the Draft), issued by several members of the Constitutional Consolidation Committee, may indicate the treatment of freedom of expression within Libya’s legal framework in the future.
The Draft offers safeguards for freedom of expression and freedom of publication, noting that the State shall take “necessary measures” to protect private life and prohibit incitement to hatred, violence, and racism based on ethnicity, colour, language, gender, birth, political opinion, disability, origin, geographic affiliation, or any other reason whatsoever.
It also prohibits a form of hate speech known as takfir (declaring someone to be an unbeliever or apostate).
The Draft also attempts to offer protection for the right to information, stating that “the State shall develop the necessary measures for transparency and shall ensure the freedom of receiving, sending, exchanging, and examining information from multiple sources”.
Whilst these are progressive steps and would likely strengthen the protection of freedom of expression, they unfortunately still fail to adhere to the standards required by international treaties.
The Draft’s provisions do not specify that the State’s measures restricting the right to freedom of expression must be provided for in law.
In addition, the Draft fails to list the exhaustive legitimate aims provided in international law, instead providing specific examples of types of prohibited expression. This means that other types of expression that may have a severe adverse impact on the rights of individuals or the public well-being in general may, in fact, be protected in supreme law.
For example, making fraudulent claims or producing child pornography would potentially be protected forms of expression within the current wording of the Draft.
The Draft’s provisions which guarantee the freedom and independence of the press and media are not consistent with international minimum standards. They potentially limit accessibility of this right to citizens, rather than all those within Libya’s territory and jurisdiction.
In addition, the Draft allows for judicial authorities to ban and revoke individuals access to the right, without reference to the requirements of international law for necessity of the restriction or pursuit of a legitimate aims.
This creates a danger that, in the event the State passes restrictions that are not compliant with international standards, that the judiciary may erroneously implement them.
The Draft establishes the need for a law, to be passed by the Libyan government, that regulates “the Higher Council for Media and Press”. The Draft stipulates that this law must adhere to the constitution’s other provisions, but that the law will be free to determine the compositions, competences, and work systems of the Higher Council for Media and Press.
By providing discretion to future governments to determine the character of the Higher Council for Media and Press, there is a significant concern that legislation will establish a centeralised institution, inconsistent with Libyan media’s demands for self-regulation.
Libyan State practice since 2011 has demonstrated the dangers of centeralised regulation, with multiple transitional governments imposing arduous restrictions on the media and introducing measures designed to shield authorities from criticism.
The Draft provides for the supreme status of international law and the provisions of the constitution, above that of domestic law and regulations. This is fundamentally undermined, however, by the Draft stating that “Islamic Shariah shall be the source of legislation” without reference to how this provision will be implemented in practice.
This provides scope for challenges to the applicability of constitutional protections offered to freedom of expression or those provided in international law, on the grounds that they do not sufficiently stem from or comply with Shariah. This could be exploited to the extent that constitutional protections are ultimately rendered worthless, as they may not be able to to offer any meaningful protection.
Despite the initial hopes of many following the 2011 uprising, freedom of expression remains in a precarious position in Libya. Accessing legal protections, such as human rights, remains near impossible for individuals. However, as this report has identified, laws and regulations remain a core tool that Libyan authorities use in their efforts to limit expression.
Whilst the Constitutional Declaration offers theoretical protection, its provisions and its intentions have increasingly been disregarded at the domestic level. This guide has demonstrated that draconian laws such as the Publications Act, once believed to have been repealed, are being used once again to ban the sale of books. The guide has also noted that transitional governments have repeatedly attempted to introduce new measures that limit and criminalise expression, especially that which is critical of their authority.
Further, despite repeated calls from Libya’s nascent media, current drafts of the future constitution continue to enable the regulation of the media by central government.
Key stakeholders of freedom of expression, particularly the media, are strongly encouraged to resist these repressive initiatives. Failure to organise and mobilise to challenge efforts now will likely lead to greater losses of fundamental freedoms beyond freedom of expression in the future.