My Interview with three lawyers on Facebook Crimes in Iran

 

09 June 2015 by Nargess Tavassolian

Iranian authorities have a reputation for handing down harsh sentences for journalists, activists and political dissidents. As open debate, commentary and political discussion continues to migrate online, they have recalibrated their tactics to clamp down on free speech by targeting people who use social networks to spread vital information, mobilize activism and share opinion. 

IranWire spoke to three Iranian lawyers about the increasing numbers of arrests and prosecutions for online activity, the judges who hand down heavy sentences, and what it is like to work in a country where top officials routinely use Facebook — despite the fact that it is officially banned. 

“Mina B,” who uses a pseudonym for security reasons, has worked a lawyer for several years, defending clients against some of Iran’s most notorious judges.
Mousa Berzin Kalifelo is currently based in Turkey. He has represented clients who have been arrested or prosecuted for their online activities, including activity on Facebook.

Amir Salar Davoodi has worked with many clients who have been arrested or prosecuted for their online activities, including Soheil Arabi, who was recently sentenced to death for his Facebook posts.  

What is your experience of defending clients accused of crimes on Facebook?
Mina B:
One of my clients was arrested during a demonstration after the 2009 election. While she was at the detention center, she was asked for the password for her Facebook and email accounts. Because she was not acquainted with the law, she immediately gave her passwords to the guards.
Based on her Facebook messages, she was charged with issuing a manifesto. I protested, and said to Judge Moghiseh, “Look, if you want to charge my client

based on her Facebook message, you need to look at her sent folder [which

shows the messages she had sent to others] and not her inbox folder [which

only shows the messages that my client had received from others].” I tried to

explain by providing an example. “If you have a cellphone, anyone who has your number can send you whatever text messages that he/she wishes to. You are not responsible for the messages others have sent to you.”

At that time, Judge Moghiseh was not really acquainted with cyberspace,  

including Facebook, and could not understand the difference between the inbox

folder and the sent folder. But the security forces and intelligence agents who

prepare the case for the court are aware — but they pretend they do not know about Facebook in order to make the situation even worse for the accused.

And some judges are aware too, well acquainted with the internet and online activities. Among them is Judge Pir Abbasi, who has an email account and uses Viber.

There is a saying in Persian that sums up the problem of judges when it comes to online activities. “You may be able to awake someone who has fallen asleep,” the saying goes, “but you won’t be able to awake someone who pretends to be asleep.” Unfortunately, even those judges who do have knowledge pretend they do not, in order to build a case against the accused.
For example, I had a client who was charged based on a post that he had been tagged in. I told the judge, Judge Pir Abbasi, that my client had neither written, nor shared this post; but that he had only been tagged. The judge answered, “Well, he could have managed his Facebook settings so that other users could not automatically tag him or he could have at least removed the tag once he had seen it!” He clearly knew about tagging on Facebook and how it functions, but he still held my client accountable for it.


Mousa Berzin Kalifelo:
When I was in Iran, most judges were not acquainted with Facebook.  

They had only heard about it through word of mouth or through the courses organized for them by the judiciary. In general, I can say most judges are skeptical about Facebook and conceive it as an immoral or anti-revolutionary network that corrupts the Iranian youth and encourages them to take part in immoral activities. When an activist is arrested, if he has a Facebook account, it will be mentioned in his case. A printout of his posts will be attached to his file.

Usually, the charges are based on the penal code. “Propaganda against the

state” and “spreading lies” are two of the most common charges brought against Facebook users.

How have Iran’s judicial authorities responded to Facebook, particularly as a tool for spreading information and material the Iranian government does not want to get out?
Amir Salar Davoodi:

With the arrival of Facebook, the judiciary felt that it needed to organize classes for judges about Facebook and the way it functions, but these classes did not seem to be sufficient. Eventually, the judiciary decided to establish a separate prosecution department for dealing with internet crimes.
Regarding the judges who deal with these cases, most of the younger judges are
acquainted with Facebook, but older judges are not. I have met with some judges who were not even able to properly pronounce some Facebook-related words such as “post,” “share,” and “status.” Most verdicts issued in connection with Facebook are due to the judge’s unawareness of Facebook and how it functions. For example, I had a client who had written a post on Facebook, which, even though it was critical of the government, was in no way insulting; however, some of his Facebook friends had written insulting comments under his post. The judge held my client responsible for others’ comments. As you can see, he could not tell the difference between a Facebook post and the comments written by other people underneath the post.  

Sentencing someone for a comment that had not been written by him is against

the penal code. According to the code, the actus reus [guilty act] must be committed by the person accused of the crime, and not by someone else.

Judges need to acquire knowledge about their cases. This should not be only limited to cyberspace cases. For example, I had a client who was a Baha’i. As a lawyer, I felt that I had to read a lot about my client’s faith, because I believe as a lawyer one needs to be familiar with the mindset of his client. The same also applies to judges. For example, when a Baha’i says that according to his personal belief, he is required to do welfare work, you can understand him better — rather than arguing that he is doing welfare work in order to undermine the Islamic state and bring people into Baha’ism. In one of my cases, the judge did not even know about the difference between Baha’ism and Babism and was not aware of the principles of the Baha’i faith.
 
Going back to the Facebook discussion, when a client is being charged for a post that he has been tagged in, of course one of my defenses would be that my

clients had not written that post, that the post had been written by someone else, and had then been posted to his Facebook wall. I try to explain this by bringing in

an example: “If someone stuck an advertisement to your wall, would you be

responsible for the content of that advertisement? The judge’s answer would be

no. I would then say, “So, tagging is exactly like sticking a poster to someone’s

virtual wall. You cannot hold that person responsible for the post that was

posted to his Facebook wall, just like you cannot hold someone responsible

for an advertisement stuck to his wall in the real world.”

It is important to take into account the fact that sometimes the judge will argue, “Well, that person could have removed the tag, had he not approved of it. The fact that he did not remove the tag proves that he approved if it.” If we had a fair judicial system, the judge would have never raised that justification and would have voted in favor of the accused, abiding by a judicial principle named “interpretation in favor of the accused.” Unfortunately, this important principle is not observed in practice.

In one of my defenses, I argued that the phrase “Death to Someone” cannot be considered insult, because it is not an insult — it is a curse. Cursing is not penalized under the Penal Code. Under the principle of “interpretation in favor of the accused”, cursing should not be penalized, but unfortunately, most judges do not observe this principle in practice.


What about the well-known case concerning online activity, which the press dubbed the “Facebookers” or the “132” case? 

Mina B:
The accused in the case all shared three charges: gathering and conspiracy against the state; propaganda against the state and insulting religious sanctities. Some had additional charges such as “owning vulgar music” or “owning satellite dishes.”
One of the accused was a poet and had insulted Imam Hossein [the first imam in Shia Islam] in one of his poems. Another was a caricaturist and had drawn some provocative caricatures of authorities — even the reformists — including [foreign minister] Mohammad Javad Zarif.  Well, the insult charge did not leave me with much of a defense, but I challenged some other aspects of the verdict. For example, the judge had ruled based on a previous law, which in case of multiple crimes required the enforcement of all the punishments. Based on this rule, the judge had convicted each convict to long prison terms. Overall, the eight accused were sentenced to 132 years’ imprisonment [as well as “Facebookers,” the case was also well known by this number].  I protested at the court and launched an appeal. Fortunately, the court agreed to apply the new law, which required it to apply the harshest punishment in case of multiple crimes, and not the combination of all the punishments.

My second defense was the argument that insulting religious sanctities could not be considered to be a security crime.
My third defense was that the charge of taking part in a gathering with the intention of conspiracy against the state cannot be based on any virtual [online] gatherings or forums, because at the time that the relevant article, Article 610 of the penal code, was enacted, cyberspace did not exist — so the legislator could not have had online forums in mind when drafting it.


Are the charges for Facebook activities made based on the 
penal code or the Computer Crimes Code?

Mina B:
It depends, but most of the time the crimes are based on the Penal Code. For example, most of the time the charge of “spreading lies” is made based on Article 698 of the Penal Code, and not Article 18 of the Computer Crime Code, unless it is to do with a specific crime — such as hacking into emails — which must be dealt with under the Computer Crime Code.

In most countries, Facebook crimes are conceived of as Press Crimes. Facebook is regarded as a kind of media, like a blog. In Iran, if a person publishes a blog and writes something on it that is deemed to be against the law, usually the Prosecutor’s Office of Media and Culture would handle his case; if he is considered to be guilty, his case would be referred to the press court, but we have way to go until that stage.


Amir Salar Davoodi:

There is no specific code for Facebook. There is a code entitled “The Computer

Crime Act”, which mainly deals with changing and displacement of data, such as

hacking emails, etc. Except for these specific cases, the Islamic Penal Code is

used. To bring an example, the people who were charged with insulting the

founder of the Islamic Revolution through Viber were convicted based on the

Penal Code — and not the Computer Crimes Act.

Is being on Facebook considered a crime in Iran?
Mina B:
Well, because Facebook is filtered in Iran, a person who has an account might be told that he/she has breached regulations by going on to a blocked site, but in practice, if certain red lines are not crossed, I don’t think anyone would get into trouble for having an account on Facebook.

Amir Salar Davoodi:
Well, there is no specific law that bans Facebook, though the government

filters Facebook along with other websites. “The Committee for the Determination of Criminal Content” has been set up. It can decide what is considered to be criminal at its own discretion. For example, after eight years of publishing a blog, the committee announced that it considered it to be illegal. It was removed without any explanation.

Many Iranian authorities, including Zarif, have Facebook accounts. How does the government respond to this double standard policy?

Mina B:
Yes, many Iranian authorities have Facebook accounts, including Mr

Zarif and Ms. Molaverdi [Shahindokht Molaverdi, vice president for women and family affairs], but when asked, many of them allege that they have not created their accounts and are managed by their fans.

Amir Salar Davoodi:
Well, this is not the first double-standard policy in Iran and it will not be the

last. Probably the Iranian authorities would argue that someone like Zarif is  aware of the redlines and will not cross them, but others do not have

this capacity — so Facebook needs to be filtered for them.

What about the interrogators? Are they familiar with Facebook?
Amir Salar Davoodi:
Currently there is a police unit called “the cyber police” [FATA]. The police who work in this unit are quite knowledgeable about cyberspace. Most of them are quite young.  But sometimes, because they do not want to act in favor of the accused, they pretend that they are not aware of cyberspace. Also, sometimes intelligence service agents or Revolutionary Guard security forces carry out the arrests.

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