Article 13: “Anyone who, without any legal permit and license, uses computer and telecommunication systems in order to enter, alter, delete or distort computer data, so as to obtain financial benefits and further certain personal interests, either for himself or for a third party, will be ordered to return the properties of others to them, and in addition, may be sentenced to a prison term of 91 days to one year, or to a cash fine of 20 million to 100 million rials, or both. ”
The main subject matter of Article 13 is “computer or telecom fraud and embezzlement”. The crime of computer fraud is not limited merely to activities directed at computer data. Instead, for the crime of fraud to actually occur, the perpetrator or a third party should earn financial gains as a result of these activities.
In their definition of the crime of computer fraud, the legislator has outlined a number of conditions which must be met in order for computer fraud to take place in the eye of the law:
A) The perpetrator should engage in certain actions, such as:
— Removing or changing data found on another person’s computer terminals
— Copying the data onto another computer terminal
— Making changes to the data found on the computer terminals of another person
— Sabotaging the data stored on another person’s computer and telecommunication systems, or more generally, engaging in any other kind of meddling with another person’s computer data.
B) The outcome and result of the actions: The result and consequence of these unlawful activities must be the generation of financial gains
C) It does not make any difference if it is the perpetrator or a third party who will have some financial gains as a result of these unlawful conducts
D) The perpetrator should be aware that the computer terminal he is accessing belongs to another person
E) The perpetrator should be aware in advance that data on the computer terminal belong to another person
A) The money earned through fraud must be returned
B) Two kinds of punishments have been envisaged for this particular crime, and these can be carried out in three different ways:
— Sentence of prison term, from one to five years, or
– Cash fine of 20 million to 100 million rials , or
– Both of the above penalties
As it can be seen from the above, an actual part of the punishment is that the perpetrator will not own the financial gains which have been earned as a result of the crime.
Article 14: Anyone who utilizes computer or telecommunication systems or data storage devices to publish, distribute or trade explicitly obscene [Farsi word: Mostahjan] content , or engages in saving and storing such content for the purpose of commercial transactions or for spreading corruption and immorality, will be punished by imprisonment terms ranging between 91 days to two years, or payment of fines within the range of five million to 40 million rials, or both.
Note 1: Perpetrating the above-mentioned actions in relation to less explicit obscene content [Farsi word: Mobtazal, which is often used to refers to frivolous and trite content] will lead to penalties equal to the minimum levels of each punishment. The term “less explicit obscene” content applies to content which contain some obscene and offensive scenes.
Note 2: When the explicitly obscene material is distributed among fewer than 10 people, the perpetrator will be fined by one million to five million rials.
Note 3: If the perpetrators turn the activities mentioned in the above article of law into their profession, or when they engage in these illegal activities in an organized manner, they will be sentenced to receive the maximums of both the envisaged punishments – unless of course they are identified as “Corrupt on Earth” elements [for whom the usual punishment is the death sentence].
Note 4: The term “explicitly obscene” means audio, visual and textual material, whether real or fictional, which depict women or men in full nude, or the genitalia of men or women, or aspects of human sexual intercourse.
The crime which is the subject of Article 14 of the Cyber Crime Law is made up of two parts:
1.1- Publication of explicitly obscene material through computer or telecommunication systems, or data storage devices
1.2 – Distribution of explicitly obscene material through computer or telecommunication systems, or data storage devices
1.3 – Engaging in the trading of explicitly obscene material through computer or telecommunication systems, or data storage devices
Question: What is the outcome and result of the action which is perpetrated?
Answer: The outcome is to gain access to the data or computer or telecommunication systems which belong to another party.
2.1- Production of explicitly obscene material through computer or telecommunication systems, or data storage devices
2.2 – Storage of explicitly obscene material through computer or telecommunication systems, or data storage devices
2.3 – Saving and preserving explicitly obscene material through computer or telecommunication systems, or data storage devices
2.4 – When by producing, storing and saving explicitly obscene material through computer or telecommunication systems, or data storage devices, the perpetrator’s intent is to use them either for monetary income, or for spreading corruption and decadence on earth.
Question: What is the meaning of the term “obscene content and material”?
Answer: The above-mentioned Article has four notes, the first one of which defines “obscene content”, as material which include repulsive and sordid image or scenes. However, the criticism that one can direct at the said Article is that it fails to provide any clear definition about “sordid images and scenes”, which make up “obscene content” in the eye of the law. It is therefore not clear which features and characteristics render images and scenes as sordid and repulsive. Obviously, different people with different opinions, tastes, mentalities, upbringing, norms and customs, and cultural and traditional bases will have their own ideas about which images are pleasant and pleasing, and which ones are sordid and repulsive. This of course will lead to different approaches, based on individuals’ own personal viewpoints being adapted against the individuals who manage computer terminals. On the other hand, labelling a given action as criminal without providing a clear definition of it, and without providing clear examples and criteria for it will be contrary to some basic legal principles, such as the need for complete clarity about the boundaries between the lawful and the unlawful, or the principle which states one is innocent unless proven guilty.
Question: What is the meaning of the term “explicit obscene content and material”?
Answer: The legislators have provided a definition for “explicitly obscene content” in Note 4 of the above Article. Accordingly, the term means audio, visual and textual material, whether real or fictional, which depict women or men in full nude, or the genitalia of men or women, or aspects of sexual intercourse between humans.
It seems that in view of the above definition, this Article of law will in fact apply to the publication, distribution and trading of many artistic and scientific books (for instance in the fields of fine arts, photography, psychology, medicine, the study of physiology of men and women, and…). In this manner, the grounds are prepared to confront and restrict researchers, scientists, artists and writers, or more generally, all the people who are involved in the production of such material , which are mainly produced, published and given public distribution by computer or telecommunication systems.
Point: In the concluding parts of the text of this Article, the mere act of storing and saving content which is considered by legislators as “explicitly obscene”, is classed as criminal activity, on the condition of course that the perpetrators’ intent for storing and saving such content is generating monetary profit or propagation of corruption on earth. What this means is that even if the “explicitly obscene” material is not used for trade and profit-making activities, the provisions mentioned in Part 2 of the Article will still apply to that type of criminal activity.
Some of the criticisms which one can make against the above Article include:
A) The text of the Article implies that as far as the intent of the perpetrator has not been actually carried out, it is not going to be possible to ascertain if the criminal act mentioned in the Article has taken place.
B) The intent of the perpetrator is something internal, which is known only for the person himself. It is the plaintiff’s responsibility to prove the presence of such intent.
C) Ascertaining the actual occurrence of the criminal act mentioned in the above Article – that is to say the storage or saving of “explicitly obscene” content – will require access to the content of the computer or telecommunication systems or the storage devices of individuals, and this in turn, will require entry into the said systems and devices belonging to the computer users. However, these procedures, which effectively pave the way for monitoring of individuals’ computer terminal under some baseless pretexts, and as such they are in clear contravention of the principle of respect for the private spheres of people’s lives, or the principle of freedom of expression.
D) The above Article also runs counter to the principle of respect for freedom of expression too, because according to that principle, everyone is free to write, draw and generally express his own opinion, taste and preference as he sees fit. In other words, the principle of freedom of expression means people should be free in what they say or what they write, and should be able to produce expressions of their opinions in the forms of drawings, graphic designs, textual material, images, etc.
In Notes 2 and 3 too, the limits of the applicable punishments have been explained, with consideration for the special conditions which may be present.
Based on the content of Part 1 of Article 14, the publication, distribution or trading of “explicitly obscene” material is a crime with penalties. Furthermore, on the basis of the content of Part 2 of Article 14, the storage, saving or generation of “explicitly obscene” content constitute a criminal activity when the intent and purpose of the perpetrator is to earn an income, or to spread corruption on earth.
Point: The notable point is that Note 3 of the Article states that if the perpetrator turns the above-mentioned activities into his trade and job, or if he engages in them in an organized manner, he will be sentenced to the maximums of both punishments – unless he is found guilty of the crime of “spread of corruption on earth”.
First: No clear definition has been provided either by this Article of law or by the Islamic Penal Law provisions in general, about the crime of spreading corruption on earth, and there is therefore no clear-cut criteria for determining the occurrence of that particular crime. This issue clearly contradicts the principle that there should be absolute clarity about the definition of the crime and the punishment it can attract, especially in view of the fact that the absence of a clear definition will pave the way for approaches and treatments which are based on the personal views and interpretation of the relevant authorities.
Secondly: Given the mention of the possibility of the crime of spreading corruption on earth, the Article to some extent paves the way for an overlap between the deterrent punishments and the punitive penalties prescribed by the Islamic Jurisprudence.
As we said earlier, the Article is also in contravention of the principles of freedom of expression, respect for people’s private lives, and the clarity of the legal provisions for the crime and its punishment.
The Article in effect envisages three kinds of punishments:
– Imprisonment for a term between 91 days and 2 years
– Cash fine of between 5 million and 40 million rials; and
– Both these punishments
It should be noted that when it comes to the crime of “spreading corruption on earth”, the punishment envisaged for the convicted person is the death penalty
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