Kurdistan Region’s ‘misuse of communication devices’ law has become a nightmare for journalists

PEREGRAF- Haval Ghalib

Kurdish journalist Shwan Adil has been taken to court on multiple occasions on two press-related charges, but tried under laws unrelated to journalism.

Adil and the media channel he works at have faced dozens of other charges, some of which were under the law to "prevent the misuse of communication devices" while there is an active law of journalism in the Kurdistan Region.

Adil was called to court as the manager of the Kurdish NRT channel in 2019 and 2020 when a party official filed a complaint on publishing articles commenting on the official’s speech. He was later released on bail but his case remains in court, he told PEREGRAF.

Following the publication of a report on setting the son of a judge free who had run over and killed a motorcyclist, the NRT manager once again found himself in court. Adil says journalists are under a lot of pressure and he has been imprisoned three times so far. He had been bailed out for up to 20 million Iraqi dinars (around $13,720).

Journalists have been in the past few years tried under the misuse of communications devices law that was passed in 2008 to penalize individuals using technology and the Internet to harass citizens – but the second article of the law has become a nightmare for journalists, and some see it as a weapon against freedom of expression and writing, as dozens of journalists and liberals are being brought to court for writings on social media.

Dilshad Anwar, a Kurdish reporter at Voice of America, was called to court and tried under the same law after a complaint was filed against him by a university professor.

"A university professor wrote an article in which he mentioned that only one journalist has been killed in this region and that was due to a social problem, so we wrote some comments to him explaining that Kawa Garmiani’s issue was not a social one, he even didn’t know his killers," Anwar told PEREGRAF.

"Later on I wrote something on my Facebook in form of an article and as an answer to the great accusation against martyr Kawa Garmiani, I mentioned the people whose crimes are covered and are protected by officials," he said. "We believed that calling Kawa's martyrdom a social problem, creates problems for his family."

Journalist and editor-in-chief of Rayal magazine, Kawa Garmiani, was showered with bullets and assassinated in front of his home in Kalar in December 2013.

Anwar is one of Garmiani’s friends who was charged for defending him, under the misuse of communication devices law, and later released on bail of 140,000 dinars, but his case remains in court.

The second article of the law states individuals who misuse social media, e-mail and communication devices to "slander, threaten, insult or spread fabricated news that provokes terror and conversations contrary to public morals" in addition to publishing private information of individuals if it harms or offends them, will be imprisoned between six to five years, or a fined between one to five million dinars.

"This law was approved in the previous term of Kurdistan Parliament and its objectives and reasons have been clarified within the law, which is aimed at preventing the negative effects that sometimes communication devices create on the private life of the people," Mam Burhan Qanie, a member of parliament from the Culture, Civil Society, Sports and Youth Committee told PEREGRAF.

"The second article of this law and its penalties should only be related to the misuse of communication devices, not writing and publishing on online websites, so we will try to amend Article 2 of this law as the committee of culture and civil society in parliament," said Qanie.

Qanie thinks "accusations, insults, and insults should not be allowed in any way, and such penalties should be regulated within the framework of civil law for digital media, as there had been such an attempt in our committee before."

"But some populist journalists, writers, and politicians have abolished this attempt to restrict media freedom, at a time when the fines and sentences in the draft bill of the parliamentary cultural committee were much lighter than those fines and penal sentences that prohibited the misuse of communication devices against media workers, Facebook, and those who criticize," he added.

The second reading for the bill on re-organizing digital media in the Kurdistan Region Parliament has not been held yet due to disagreements over the content of the bill.

"I defend freedom of criticism and publication with all my might, but to the same extent, I am against publishing and writings that are irresponsible, unethical and ugly on social media posts, which unfortunately there are scores of irresponsible writers and Facebook users to slander one another," said Qanie.

The MP called on judges to deal with cases related to writing, media work, and objective criticism supported by proven documents, with the journalism law No. 35 of 2007 which include lighter penalties, not under the penalties of Article 2 of the Prohibition of Misuse of Communication Devices.

"Resorting to this law by a judge is partly related to the judge themselves and it is part political," lawyer Sami Sati told PEREGRAF.

According to the lawyer, using the law of misuse of communication devices for journalists that have been sued because of an issue related to journalism is "against the law."

"The judge should treat journalists with law No. 35 of 2007, although being a member of the journalists' syndicate is conditional for some judges, but the journalism law does not include any section saying that journalists are obliged to be members of the syndicate," says Sati.

The Kurdistan Journalists' Syndicate emphasizes that any material that is published in the official media should be dealt with under the journalism law otherwise the practice is against the law.

"Press Law No. 35 of 2007 says if the essence of the material was journalistic, it should be treated with the journalism law, and this is helping the democratic process in the Kurdistan Region," Azad Hama-Amin, Journalists' Syndicate chief told PEREGRAF.

He added a memorandum of understanding was signed with the judiciary at the time the law was passed – so that it will be enforced. "Dozens of cases have been in the interest of journalists, and the law has established "judicial precedents", but not working with the law is certainly against the law," he said.