Article 15: Anyone who uses computer or telecommunication systems or data carriers and storage devices to perpetrate the following activities, will receive the appropriate punishments described below:
A) If, in his efforts to make some “explicitly obscene” content available to other users, the perpetrator encourages, tempts and allures the users, or deceives, threatens and intimidates them, or if he engages in providing the users with training so as to facilitate their access to his content, he will be sentenced to prison term, ranging from 91 days to one year, or to a cash fine of 5 million to 20 million rials, or both.
When the same situation is present but in relation to the “obscene” and “frivolous” content [Mobtazal], then the cash fine payable will range from 2 million to 5 million rials.
B) If the perpetrator uses the means of enticement and persuasion, or deception, threat and intimidation, in order to make others engage in indecent sexual acts, or acts of sexual perversion, violent activities, use of illicit and mind-altering drugs, or suicide, or if he embarks on providing instructions and training to computer users to facilitate their involvement in the above-said activities, he will be sentenced to prison term, ranging from 91 days to one year, or to cash fine of 5 million to 20 million rials, or both.
Note: The provisions of the above Article, or that of Article 14, will not be applicable to those contents which are generated, distributed, stored, saved and sold or bought for scientific purposes, or for pursuing any other rational and positive intention.
All the activities which in the above Article make up the “material element” of the crime are considered as manifestations of aiding and abetting a crime, according to the Islamic Penal Law. However, according to this Article, engaging in these activities independently of any other activity, and in its own right, will constitute a criminal activity.
In Note A of this Article, it is clear that the essence of the crime it refers to is the act of placing people in situation where they are likely to be gain access to “explicitly obscene” content in computer or telecommunication systems. In other words, the goal and intent of the perpetrator must be enticing, persuading, alluring or using other means to direct individuals to situations and locations where they can access the “explicitly obscene” or merely “obscene” material on computer and telecommunication systems.
Based on Note A of the above-said Article, engagement in any of the following activities will constitute the “material element” of crime:
– Persuading or motivating people to access “explicitly obscene” or “obscene” content, or
– Threatening people to make them access “explicitly obscene” or “obscene” content, or
– Alluring users to access “explicitly obscene” or “obscene” content, or
– Tricking and deceiving people to access “explicitly obscene” or “obscene” content, or
– Making it possible for individuals, for instance by means of providing them with training and instructions, to access “explicitly obscene” or “obscene” content.
According to the above Article, it is not necessary for these actions to yield any particular outcome and result, and instead, the mere engagement of perpetrators in these activities constitutes a crime. However, first, these activities should essentially take place within the domain of computer and telecommunication systems; secondly, the perpetrator must be fully aware in advance about the obscene and explicitly indecent nature of the content on his computer and telecommunication systems; thirdly, the perpetrator must also have prior knowledge that the above activities in computer systems constitutes an unlawful and criminal activity; and fourthly, the defendant perpetrates these activities with a criminal intent, and with full awareness and knowledge of the legal status of such actions.
In Paragraph B of Article 15, the essence of the crime is the perpetrator uses the computer and telecommunication systems for the purpose of enticing, persuading, threatening, and… alluring individuals to commit indecent and immoral acts, or use narcotic and mind-altering drugs, or commit suicide, engage in violent conduct or in acts of sexual perversion.
Needless to say, the prerequisite for the occurrence of the crime in reality is that first, it should take place inside computer and telecommunication systems; the perpetrator must be fully aware of the illegal nature of his actions; and he should also have the specific purpose and intent for his activities.
Point 1: No clear definition has been provided for indecent acts, violent conduct or acts of sexual perversion, and this prepares the grounds for all kinds of approaches by the relevant officials, based on their own interpretations and point of view, against the people.
Point 2: The criminal activity that this Article refers to is in contradiction of the principle of respect for the private sphere of people’s lives. After all, to discover these crimes, it is necessary to gain entry into the computer terminals of citizens, and this is obviously in contravention of the principle of respect for the private lives of people.
Point 3: Although the notes to this Article emphasize that the crimes mentioned in Articles 14 and 15 do not include the material and content which are produced, distributed, stored, saved or bought and sold for scientific purposes or other rational and expedient interests and intentions, since no specific legal and logical criteria have been mentioned for determining what constitutes “rational and expedient interests”, the way has been paved for the influence of personal tastes and preferences, because everyone will have his own interpretation of the concept of “interests”.
Article 16: Anyone who uses computer and telecommunication systems in order to alter or distort the picture, audio or moving images of another person, and then publishes the doctored material with the awareness of the changes which they have undergone, and this publication leads to the defamation of the original person, will be sentenced to prison term, ranging from 91 days to two years, or to cash fine of 5 million to 40 million rials, or both
Note: In the case where the alteration or distortion turns the original material into “explicitly obscene” content, the perpetrator will receive the maximums of both punishments.
The crime which Article 16 refers can be said to have occurred in reality when the following conditions are met:
A) Distribution of still or moving images or audio of individuals through computer and telecommunication systems
B) Alteration and distortion of the images and sounds of others through the use of computer and telecommunication systems, and then publishing the resulting material
C) Publication of altered or distorted images or sound of others through the channel of computer and telecommunication systems
D) The publication of the altered or distorted material should lead to the defamation of the character of the person to whom the original material belongs.
(Note) In Paragraph A, the mere act of publishing the image or voice of someone – even without alteration and distortion will constitute a criminal activity, if it leads to his defamation
However, the subject matters of Paragraphs B and C are two actions: altering or distorting the image or sound of someone else through utilizing computer and telecommunication systems; and secondly, the publication of the altered material through the said systems.
(Note) If the film, image or audio of others – which have been altered or distorted by computer and telecommunication systems – are published and distributed by means other than computer or telecom systems, then this action will not be covered by the criminal activity that Article 16 defines.
(Note 2) The above Article does not apply to cases where the distortion or alteration of someone’s image or voice by means other than the use of computer and telecommunication systems.
(Note 3) Another prerequisite for the occurrence of this crime is that the distortions of the original image or sound material have been done without the consent of person to whom they belong.
(Note 4) Another condition is that the perpetrator must be fully aware of the illegal nature of his actions and should also have a specific intention and purpose to perpetrate them.
(Note 5) The law has stated that society’s “norms” will determine the criteria to decide the occurrence of the crime
(Note 6) The type of the crime, and the fact that the private and individual-to-individual aspect of the crime dwarfs the extent of its public impact, are factors which indicate that an initial complaint by a private plaintiff is essentially required for legal action to begin and a case file to be compiled against the perpetrator. Unfortunately, the law has not provided with any specific information and guidance about this particular aspect of the crime.
Imprisonment from 91 days to two years, or cash fine of 5 million to 40 million rials, or both
The Note added to this Article states that the punishments will be aggravated if the altering or distorting images or sound results in material which constitutes “explicitly obscene” content.
Article 17: Anyone who uses computer and telecommunication systems to broadcast, distribute or share by other means audio or visual material depicting scenes from a private or family event, without the consent of the people involved – except on occasions permitted and sanctioned by the law – thereby causing them losses both materially and also in terms of their reputation and honour, will be sentenced to prison terms, from 91 days to two years, or to a cash fine of 5 million to 40 million rials, or both.
The subject matter for this Article is the publication and sharing of private films of different individuals (such as films recorded at their wedding receptions and birthday parties, or generally depicting of the sound and image of other people without their consent) through the channels of computer and telecommunication systems. The publication of images or movies of other people on computer and telecommunication systems constitutes a crime when the following criteria are met:
A) Lack of consent by the owners of the material
B) The action should cause the owners some losses or lead to damage to their name and reputation
C) The criteria which determines if the action has caused the said losses and harms will be society’s conventions and norms
D) The perpetrator must be fully aware of the illegal nature of his actions and engages in publishing other people’s private images or voice on purpose and with the intent of defaming them.
As the above Article stated, its essence has more of a private aspect than a public one, and it is clear that a case file can be compiled against the perpetrator in order to set in motion a legal action only after a private plaintiff comes forward. Unfortunately, with regards to this Article too, the legislators have not provide any further guidance.
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Sep 04, 2018 Comments Off on Free Tribune of Lawyers condemns detention of human rights lawyers