Image: censorship and free speech

In Saudi Arabia, no safe harbor for free speech

In Saudi Arabia, expressing yourself online is extremely dangerous. Numerous bloggers, dissidents, and women’s rights defenders have faced unjust prosecution, harsh prison sentences, and travel bans simply for expressing dissent and standing up for human rights. This digital repression is set to get even worse. Saudi authorities have recently proposed two laws that, if enacted, would further restrict free expression online, even potentially silencing people outside Saudi Arabia. 

The first proposed law, the Media Law, focuses on regulating media activities. The second, the Global Digital Content Safe Harbor Law, aims to incentivize foreign digital companies to set up operations in Saudi Arabia by offering limited protection from liability for the content they host globally. As we explain below, both proposals would only further entrench Saudi Arabia’s digital authoritarianism and control. 

Why the proposed Media Law is dangerous

In November 2023, the General Authority of Media Regulation (GAMR) proposed a new Media Law to overhaul Saudi Arabia’s existing legal frameworks regulating media, including audio-visuals, radio, press, and publications. The draft Media Law’s scope goes beyond legacy media, however.  It applies to digital communications platforms like social media sites, which fall under the definition of media outlets, as well as to individuals expressing their opinions online.

The draft Media Law mandates that media outlets, including digital platforms, obtain a license from the authorities before conducting any media activity, including the creation, dissemination, or streaming of media content. The GAMR is responsible for issuing or renewing these licenses. Notably, it also has the discretion to determine if content requires prior approval before publication, based on rules that will be set later. 

This licensing mandate not only creates a censorship regime, it contravenes human rights-based standards related to media regulation. As the UN Human Rights Committee recommended in 2011, “Regulatory systems should take into account the differences between the print and broadcast sectors and the internet.” The justification for requiring broadcasters to get a license is limited spectrum for operating, but there are no such limits for online platforms and social media sites.

While Article 11 of the draft Media Law purports to guarantee the right to freedom of expression, it prohibits many forms of expression and content, banning false news, content critical of Islam and the royal family, and anything that authorities believe could jeopardize national security, public order, the national economy, or Saudi Arabia’s foreign relations. These broad prohibitions contradict international standards. For instance, regarding the ban on criticizing the royal family, the UN Human Rights Committee has emphasized that “all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition.” The prohibitions are also worded too broadly, conflicting with the requirement that restrictions on freedom of expression be based on clearly formulated laws. 

Finally, the draft Media Law would only add to the government’s already powerful censorship arsenal which tightly restricts online civic space through various draconian laws, including the Counter-Terrorism and Anti-Cybercrime Laws.

Safe harbor for digital companies? This is fake news!

In September 2023, Saudi Arabia introduced its first intermediary liability law for global digital content. Intermediary liability regimes govern to what extent intermediaries like digital platforms may be liable for content published by their users. It is well established that at least conditional immunity from liability for intermediaries is key to protecting free expression online. 

The draft Global Digital Content Safe Harbor Law emphasizes the immunity principle for intermediaries for third party content. Yet, provisions in the draft Safe Harbor Law itself and the draft Media Law discussed above could serve to significantly undermine this principle.

Firstly,  the draft Safe Harbor Law stipulates that “the provider of intermediary services shall not be subject to any civil or criminal liability as per the Kingdom’s regulations resulting from offering intermediary services that include global digital content contrary to the Kingdom’s laws.” Conversely, this implies that there is no immunity when it comes to local digital content.

Secondly, combined with the vague restrictions outlined in the draft Media Law, this expands the categories of local digital content for which platforms may be held liable. To avoid potential liability or financial sanctions (up to 660,000 USD under the draft Safe Harbor Law), platforms may opt to monitor more content and remove broad categories of protected speech.

Furthermore, digital platforms are not granted a safe harbor automatically. To be exempt from civil and criminal liability, companies must apply for an exemption and receive a certificate from the Saudi Communications, Space & Technology Commission (CSTC) to show they are qualified for such an exemption. The exemption is revoked as soon as the certificate expires, or is canceled, suspended, or not renewed. In other words, the Saudi government can decide when and to whom to offer this intermediary liability. 

Intermediaries exempted from liability are still subject to requests from the CSTC to remove or geo-block content that violates conditions to be set in the pre-qualification certificate. 

In sum, digital companies will face a permanent liability threat for hosting content that is considered first as local and second as illegal unless they  automatically remove any content that contains, for example, criticism of the royal family or Islam, or online books that contain descriptions of sexual scenes. It’s foreseeable that digital platforms will favor broad censorship to reduce their legal exposure over protecting people’s right to freedom of expression. 

How Saudi Arabia plans to strong-arm digital platforms

Both the draft media and safe harbor laws would give digital platforms incentive to remove protected speech or restrict its visibility. 

Firstly, the draft Media Law obliges digital platforms to prioritize local content which is defined as “media content that relies on national elements and inputs and is produced wholly or partially within the Kingdom.” 

Such an obligation will push digital platforms to filter content by prioritizing local content over other “non-local” content that might be newsworthy or critical of the government regarding its conduct in human rights or any other public interest topic. 

Secondly, content filtering is also required under the draft Safe Harbor Law, which enables the CSTC to impose access restrictions to global digital content that violates the Kingdom’s regulations. 

It is worth emphasizing that obliging digital platforms to filter and remove user content, based on GAMR or CSTC orders, will not only significantly reduce users’ exposure to a variety of views and opinions, particularly if they are of dissenting nature or otherwise deemed “controversial,” but also render digital platforms complicit with the Saudi government’s efforts to stifle voices in the online civic space. 

Digital first, human rights last

The draft Media Law and Safe Harbor Law fit into Saudi Arabia’s larger high-tech, digital authoritarian ambitions. As part of its 2030 Vision, the Kingdom aspires to rise as a regional, if not global, tech hub. It is building a surveillance city, working to attract foreign investment, and making arrangements with BigTech companies such as Google and Microsoft for data cloud services. As of January this year, Saudi Arabia also has a new directive that compels foreign companies with government contracts to open regional headquarters in the country. These partnerships raise serious questions about the extent to which companies can resist Saudi Arabia’s surveillance and censorship demands and protect the people using their services.

It’s clear that by advancing the draft Safe Harbor Law, Saudi authorities want to offer digital companies a false sense of protection against liability. Yet close examination shows how the Kingdom plans to weaponize digital transformation policies to stifle online freedom of expression and further shrink civic space. 

It appears Saudi Arabia will host the 2024 Internet Governance Forum, despite strenuous civil society objections. Given the escalating risks for people who speak out for human rights, it is more urgent than ever that businesses and international organizations confront and address Saudi Arabia’s digital repression. We will continue to call on Saudi authorities to align their laws with international human rights standards and abandon their longstanding policy of suppressing dissent and political speech.