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Fadel Abdulghany
The arrest of the content creator Hassan Akkad in Damascus on 17 June 2026, as reported, against the backdrop of charges relating to electronic defamation, insult, and slander, has reopened a question that the transitional legal system has not yet answered through any clear legislative or judicial review: should the Syrian government in the post-Assad phase continue to apply Law No. 20 of 2022 on Cybercrime, a penal law adopted under the legal order of the Assad era, at a time where Syria today falls under a new transitional constitutional framework? The significance of the case does not lie in its individual details, which remain within the competence of the judicial authority, but rather in that it exposes a structural problem in the transitional legal framework, namely the continued use of inherited penal tools before testing them in light of the new constitutional obligations.
The argument calling for suspending the enforcement of the Cybercrime Law rests on four bases. The first relates to the principle of criminal legality. The second relates to the test governing the permissible restrictions on freedom of expression under international human rights law. The third relates to the chilling effect that loosely drafted penal provisions produce in the public sphere. As for the fourth, which is the weightiest in the present constitutional moment, it relates to the tension between Article 48 of the Constitutional Declaration issued on 13 March 2025, which requires the repeal of exceptional laws incompatible with human rights, and Article 51, which keeps existing legislation in force unless it is amended or repealed.
The first basis is criminal legality, expressed in the Latin maxim: “no crime without a defined law”; that is, no person may face punishment under an offense so vague that its scope cannot reasonably be foreseen. This is not merely a procedural guarantee, but rather a substantive constraint on the form that penal legislation may take. So when a provision criminalizing conduct on the electronic network uses terms of undefined scope, leaves its elements unspecified, and consigns its application to the discretionary interpretive authority of the investigating or judicial bodies, then the provision risks performing the function of a broad delegation of penal authority more than that of a clear legal rule. And according to my reading, a number of the articles of the 2022 law that relate to expression involve precisely this kind of indeterminacy, and this vagueness is concentrated in the provisions governing expression rather than in those governing attacks on systems or data.
As for the second basis, it rests on Article 19(3) of the International Covenant on Civil and Political Rights, to which Syria has been a party since 1969, and on the interpretation of it adopted by the United Nations Human Rights Committee. Restrictions on expression are not permitted unless they satisfy three cumulative conditions: that they be provided for by law in the strict sense set out above; that they pursue a legitimate aim from the limited list recognized in the Covenant; and that they be necessary and proportionate to that aim. And according to this analysis, the expression-related provisions in the Syrian cybercrime regime fail to satisfy the first condition for the reasons already set out. They also conflate two categories of conduct that international standards treat as distinct. For the crimes committed against systems, networks, data, and digital privacy, including fraud, extortion, and unauthorized access, address conduct whose harmful character is a constitutive element of the offense. As for the crimes relating to the content of published expression, they address conduct whose harmful character depends on the context, the intent, the audience, and the public or private capacity of the person concerned. Subjecting both categories to a single penal logic, with comparable custodial penalties, makes conducting a meaningful proportionality assessment difficult in practice, and increases the risk that enforcement will be skewed against expression. None of this negates the authority of the state to confront defamation, privacy violations, fraud, extortion, and attacks on digital systems. However, it requires that this regulation be clear, foreseeable, and subject to effective judicial oversight.
The third basis relates to what the concepts of international human rights law call: the chilling effect. For the harm inflicted by loosely drafted criminal provisions relating to expression is not confined to the cases in which they are actually applied. The mere existence of penal provisions framed in broad terms, coupled with the possibility of pretrial detention and the vagueness of judicial interpretation, drives individuals to refrain from speech that the law does not in fact prohibit. And thus people fall silent before the state needs to intervene. Hence the harm is pervasive, preemptive, and self-enforcing. And in a transitional context, this harm is especially grave, because entrenching a post-authoritarian public sphere depends on the willingness of citizens, journalists, content creators, and political actors to take part in public criticism and debate without fear of being subjected to penal accountability. And when this willingness is suppressed by inherited legislation, the transitional phase risks becoming merely a change in persons within a legal structure that has not been reformed.
As for the fourth basis, it grants the argument calling for suspension a constitutional foundation. For Article 48 of the Constitutional Declaration obliges the state, in mandatory language, to repeal the exceptional laws that harmed the Syrian people and are inconsistent with human rights, to nullify the effects of the unjust judgments issued by the Terrorism Court, including the return of confiscated property, and to repeal the exceptional security measures relating to civil and property documents that the former regime used to repress Syrians. And if this article is read together with the preamble of the Declaration, which describes the former regime as having turned the law into an instrument of oppression and enslavement, then Article 48 establishes that dismantling the legal tools used to punish opinion and political expression is a present constitutional duty, not a deferred legislative project to be embarked upon when convenient. According to a functional reading of Article 48, a law need not have been issued under formal emergency powers in order to fall within its logic, if its content and enforcement operate as an exceptional instrument of repression. For a penal provision that criminalizes expression in terms that conform neither to the principle of criminal legality nor to the international standards relating to freedom of expression falls within this category.
This obligation stands in direct tension with Article 51, which provides that legislation in force remains effective unless it is amended or repealed. For Article 51 produces a default rule of legislative continuity. As for Article 48, it produces an obligation of legislative rupture with respect to a defined category of laws. The two texts cannot be reconciled except if Article 48 is read as excepting, from the general continuity established by Article 51, those laws whose content falls within the categories it enumerated. As for reading Article 51 as making its provision prevail over Article 48, that would empty the latter of its practical content, and would turn the constitutional obligation into an aspirational statement. And the Cybercrime Law, in its expression-related provisions, falls precisely at the point where the two articles meet, and the way in which the transitional authorities address this meeting point will determine whether Article 48 will operate as binding constitutional law.
Therefore, the appropriate transitional response does not consist in confining oneself to the subsequent amendment of individual articles, even if amendment is necessary. At a minimum, the authorities should restrict the content-related provisions in the law to the narrowest possible scope until the review is carried out. As for the stronger step, the one most consistent with the constitution, it is to suspend those provisions, and to confine the application of the law to the categories of conduct on which its substantive justification rested, that is, attacks on systems, data, networks, and digital security. For amendment is a process whose duration cannot be controlled by those most exposed to the risk of the law’s enforcement. And during that period, the chilling effect accumulates, the risk of pretrial detention persists, and the precedents that the first prosecutions establish influence the shaping of subsequent judicial practice in ways that are difficult to reverse. The case relates to a constitutional question: will the obligations of March 2025 be treated as enforceable obligations or as deferred aspirations? Suspending the Cybercrime Law is the measure that gives this question its first concrete answer.
