Facts: Mr. Ali Anouzla is an award winning Moroccan journalist and the editor-in-chief of Lakome2. In September 2013, he published an article for the now banned independent news website, Lakome.com, which contained a link to an article published by the internationally known Spanish newspaper El Pais which was about a video released by Al Qaeda in the Islamic Maghreb that called for waging jihad against Morocco’s king, King Mohammed VI. The video had made news internationally, and as was a commonplace practice among journalists, many had posted links to the video online. As a consequence of publishing the article (which linked indirectly to the terrorist video), Mr. Ali Anouzla was arrested and charged with “allegedly providing ‘material assistance’ to a terrorist group, ‘defending terrorism’ and ‘inciting the execution of terrorist acts’” based on the anti-terrorism law 03-03 of May 23, 2003. Although when he was first charged, he faced the prospect of six years in prison which is in line with Article 218(2) of the Moroccan Penal Code. It is important to point out that Anouzla was known to have had written articles that were critical of King Mohammed VI and his business practices and that Lakome.com also exposed a scandal in which King Mohammed VI pardonned a serial child rapist (this scandal led to protests against the regime in 2013). In other words, he did have a history of being critical of the regime and wrote articles that promoted democratic reform. He spent five weeks in “preventive detention” before he was released on bail on October 25, 2013. During this time period, the French and Arabic versions of Lacome were banned by the Moroccan government. Even though he was released a few weeks after his arrest, today, almost three years later, he still faces the same charges which could result in a prison sentence of up to 30 years (different sources have indicated a range of 10 to 30 years).

Note #1 : It is also important to note that Anouzla faced prosecution for an interview that he did in November 2015 with a German newspaper called Bild. Based off of a mistake that was made in the translation of the interview, he was charged with “endangering the Kingdom’s territorial integrity.” His reference to “Sahara” was translated as “Occupied Western Sahara,” which is a topic that is considered controversial in Morocco.He potentially could have spent up to five years in prison, but in May 2016 he was acquitted. His trial for this charge was also continuously postponed as is the situation with the charges that he is faced with for the Lakome article.

Note #2: Due to difficulty in finding the text of Morocco’s anti-terrorism law, the analysis that will be provided below will focus on the anti-terrorism law provided in Article 218(2) of Morocco’s penal code.

Issue - Are the arrest and continuing court proceedings against Mr. Ali Anouzla compliant with international incitement law standards?

Rule – Under the Universal Standard of the ICCPR, incitement laws must not stifle freedom of expression. The test is six-prong.

The first prong (legality) requires that the restrictions on freedom of expression are provided by law and are formulated in a sufficiently precise manner to allow individuals to regulate their conduct accordingly.

The second prong requires legitimate grounds for restricting expression which consist of protecting the rights of others, and/or national security, public order, public health, or morals.

The third prong (necessity) requires that the restrictions must be necessary for a legitimate purpose, and must be the only way to achieve protection.

The fourth prong (proportionality) requires that restrictions on expression must not be overbroad, must be the least intrusive instrument amongst those which might achieve their protective function, and must be proportionate to the interest being protected.

The fifth prong (intent) requires the existence of intent, specifically the intent to incite discrimination, hostility, or violence.

The sixth prong (causation) requires causation, meaning that there must be a direct and immediate connection between the expression and the threat.

Analysis –

First prong: (1) Legality – The offenses under which Anouzla was charged are formalized. However, Article 218(2) of Morocco’s penal code is not formulated in a sufficiently precise manner to allow individuals to regulate their conduct and allows unfettered discretion in restricting freedom of expression. The article targets “whoever glorifies terrorism,” which does not make clear what forms of expression would violate the statute. In this case, there is no indication that Anouzla, condoned, justified, was sympathetic to, or otherwise had any opinion towards the video that was in the link. He was simply reporting on a relevant story of public interest. Consequently, the law is both written and applied imprecisely. Therefore, the first prong is not satisfied.

Second prong: (2) Legitimate grounds – Ostensibly, the terrorism law under the Morocco’s penal code is designed to ensure the safety and security of the country as required under the Universal Standard. However, the Moroccan government has failed to adequately demonstrate how the actions of Anouzla, namely linking to a widely accessible video, is a threat to national security. Therefore, the second prong is not satisfied.

Third prong: (3) Necessity – In assessing the necessity of restricting Anouzla’s freedom of expression, the Moroccan government, and specifically its law on terrorism in the penal code, must analyze and take into consideration whether the restriction on free speech serves a legitimate purpose, and if it does, whether the aim could be achieved in other ways that do not restrict the freedom of expression. In this case, the Moroccan government must demonstrate that national security is compromised by the links posted online by journalists. As the link that Mr. Ali Anouzla posted was widely available online, it is unlikely that limiting his speech in particular would contribute to preventing an incitement to terrorism. Furthermore, it is unlikely that the Moroccan government can demonstrate how limiting the public’s access to information of public interest, via censoring links posted online by journalists (information widely available and shared on global media), contributes to national security. Therefore, these factors demonstrate that there was no true legitimate purpose in restricting Anouzla’s expression. Additionally, under Article 218(2),”a fine between 10,000 to 200,000 MD (1,040-20,200 USD)” could have been imposed on him instead of the five weeks of preventive detention. The Moroccan government’s restriction of expression in this case cannot be deemed necessary for a legitimate purpose or the only way to achieve protection. The third prong is not satisfied.

Fourth prong: (4) Proportionality – In connection with the discussion on the lack of precision of the law in the first prong, Article 218(2), has the potential to be applied in an overbroad manner. In light of Anouzla’s case (and the only information available about Morocco’s anti-terrorism law 03-03 of May 28 2003), he could face up to 30 years imprisonment. The fact that he could face such a punishment for a video contained in a link to another article, is indicative of the overbroad nature of Morocco’s anti-terrorism law. Morocco is unlikely to be able to demonstrate how sentencing journalists to draconian prison sentences is the least intrusive method of ensuring national security or how it is proportional to the interest that is aims to protect. Therefore, the fourth prong is not satisfied.

Fifth prong: (5) Intent – There appears to be no intent requirement in Morocco’s terrorism statute. Article 218(2) appears to be a strict liability offense, and does not require an intention on the part of defendants to incite violence, as required by international law. Indeed, in this case Mr. Ali Anouzla “did [not] disseminate or even endorse the al-Qaeda video.... He simply included a link to another post in the Spanish newspaper El Pais. Anouzla [and] did not even embed the video or include a direct link to it.” Therefore, the fifth prong is not satisfied.

Sixth prong: (6) Causation – Causation requires that the state, and specifically its laws on incitement, demonstrate “in individualized fashion the precise nature of the threat and the necessity of the action taken.” Here, there is no indication the Moroccan authorities, or the law as applied, demonstrated the precise nature of the threat posed by Mr. Ali Anouzla’s posting of a link and how it presented an immediate threat to the interest it aimed to protect. Therefore, the sixth prong is not satisfied.

Conclusion – The fact that the Moroccan laws and their application by the courts do not comply with the six-prong test analyzed above renders the Kingdom of Morocco as non-compliant with the Universal Standard on incitement.

	Compliant
	Non compliant

International Law on Incitement