Note: Hujjat al-Islam wal-Muslimeen Mohammad Qotbi has long been interested in cyberspace, conducts research in this field, and has supported numerous businesses in this space. His presidency of the Art and Creative Industries Working Group at the Islamic Research Center of the Parliament has also brought him extensive experiences in legislation. We spoke with the president of the Eshraq Creative and Innovation House about the dimensions of legislation regarding cyberspace. Among other points, he noted that between leaving cyberspace unregulated and legislating for it, there is a middle path that the world has been using for years for governance in cyberspace. The full text of
Contemporary Jurisprudence’s exclusive interview with the head of the Art and Creative Industries Working Group at the Islamic Research Center of the Parliament follows:
Contemporary Jurisprudence: What foundations and presuppositions influence legislation in cyberspace?
Qotbi: I will mention the foundations and presuppositions of legislation regarding cyberspace in order:
The first presupposition is that human actions, i.e., the activities that a person performs in cyberspace—whether producing a content, publishing it, republishing it, even commenting or liking—all activities that a person performs in cyberspace have effects; meaning they are among the activities that leave a real impact and are not like the human imagination where one might think something in their mind without external effect. In other words, the activities that a person performs in cyberspace, although conventionally called virtual space and virtual as opposed to reality, the reality is that it is a real space and human actions have effects.
The second presupposition is that the effects arising from human actions in cyberspace are attributable to the human and the individual; meaning it is not the case that we say in this vast space everyone is striving and some effects occur without knowing who they are attributable to; rather, the actions that occur and the effects that arise are attributable to the individual, meaning one can say: I published this, I said this, I liked this or republished it. Naturally, a third presupposition emerges here, that every action attributable to a person and having an effect carries a ruling and obligation. This helps us in entering jurisprudential and legal discussions into cyberspace.
Another point, which is in fact my fourth presupposition, is that when human obligations extend to the social realm and enter the rights of others, here naturally for managing society, we must seek help from the realm of law in addition to fiqh; because fiqh is more about propositions that direct the obligation to the individual themselves, meaning I am obligated not to lie, to pray, to do something or not do something, whereas law is a collective consensus arising from the republic and has a social scope, meaning it is where the impact of human behavior and actions on others can be effective, and the action is a social action; here, law comes to help us manage society based on a set of rules, regulations, and social obligations.
For example, in jurisprudential discussions, we say wine is haram. Here, it tells the individual not to drink wine; but when this individual promotes wine in society, law comes based on collective consensus grounded in Sharia to stop it and says you have entered the social field, so I will confront you. Similarly, in the issue of hijab and other matters that have social extensions.
An example of the interaction between fiqh and law is that in fiqh, transgression against others’ rights is contrary to Sharia and haram, but traffic law turns this into specific instances, meaning it specifies the examples, for instance, if you park here, you have transgressed others’ rights, so parking is prohibited; if you turn around here, you have violated others’ rights, so turning is prohibited; if you exceed speed here, you cause an accident and disregard others’ rights, thus transgressing others, so high speed is prohibited.
Law complements fiqh in the social realm. When fiqh takes on a social scope, we need law for its management. With these four presuppositions, we practically consider the foundations and presuppositions of legislation in cyberspace to be empowered.
Contemporary Jurisprudence: Is desirable legislation in the realm of cyberspace based on maximal fiqh, or can desirable legislation in this realm also be achieved with minimal fiqh?
Qotbi: We face this question in legislative discussions for non-cyberspace as well. Minimal fiqh means merely establishing religion based on non-opposition to Sharia; but maximal fiqh has an approach of establishing religion and infers from evidences. In architecture and urban planning, driving, health, in governance discussions, everywhere we have this question: does minimal fiqh suffice, or do we need maximal fiqh?
Currently, in legislative discussions, we have sufficed with approval, meaning we have based it on the fact that the Guardian Council’s approval suffices; of course, sometimes we have an inferential approach, but generally, our law is based on non-definitive opposition and minimal fiqh.
In my view, just as in non-cyberspace fiqh, it is scholarly and correct to say that wherever we can infer religion and derive its foundations and social systems, and those systems become law and manage part of society’s needs, naturally this maximal approach is stronger than minimal.
In cyberspace as well, with a minimal approach, what the law enacts is that it has no definitive opposition to Sharia; whereas moving toward a maximal approach and establishing religion is necessary, especially since today cyberspace has become very extensive and entered discussions of artificial intelligence, quantum, and metaverse, which are extremely complex topics requiring a worldview and a deep jurisprudential and Sharia philosophy; in such a way that first we must derive meta-theories, then theories, and then define systems to define our relation to cyberspace; to explain:
Throughout history, we have found our relation to the real space like nature and health; for example, when Sharia says harming the body is haram, reason naturally rules that this is correct, or when we say building a structure in the middle of the street is haram, reason quickly affirms it, because humans have found their relation to these matters; but regarding cyberspace, we have not yet found our relation to it, unless the philosophy of technology comes to our aid or we approach it from a theological angle and define technology, which is a vast, fast-paced, extensive, complex, and deep field.
If we move toward maximal fiqh that starts from foundations and provides systems, in my opinion, we proceed more logically. Of course, I say this from a worldview approach; because the worldview approach is a combination of fiqh and theology, and I think wherever we can have a theological research model in fiqh, it helps in a more precise understanding and interpretation of relations between humans and existence. In the virtual world, these relations are much harder to understand, and thus if we can reach a maximal approach there, it will naturally be better and superior.
Contemporary Jurisprudence: Must all jurisprudential propositions regarding cyberspace be converted into corresponding laws, in other words, is maximal conversion of jurisprudential propositions to law desirable or not?
Qotbi: In my opinion, like non-cyberspace where most jurists believe that not all jurisprudential propositions, whether halal and haram or recommended and disliked, need to become law; it is the same in cyberspace.
In other words, I see the relation between fiqh and law in the relation between individual and social obligation; when an obligation exceeds the individual realm and enters the social realm—not merely in the sense that like congregational prayer it is performed in society, but meaning social impact on others’ rights; law comes and helps us; meaning in addition to the Sharia prohibition and individual obligation, we also need a collective consensus for observing those laws and regulations. Now, in cyberspace, we say the same. If an issue has an individual relation, like watching pornographic films, naturally it does not become law; but if the same issue becomes “producing and displaying pornographic films” that affects others’ rights and harms them, law comes and prohibits it.
Thus, not all jurisprudential propositions that relate to human obligations and actions in cyberspace and create obligations need to become law; rather, where it acquires an effective social realm, it must become law.
Of course, let me add something here that the world has created a method between these two that unfortunately we pay less attention to, and regarding the cyberspace law that went to parliament and underwent seventeen revisions and ultimately did not gain serious momentum, I published a few notes and told parliament friends that the world has found a middle ground called “regtech” technological regulator, meaning regulation with the help of technology. In this method, we neither have merely enacted and promulgated laws nor leave the issue as an individual obligation; rather, we make the system intelligent so that if it detects in any way that someone is violating, it cuts off some accesses for them; for example, if it detects that someone is under 18, it blocks certain films and sites for them, or if someone drives over 120 km/h on the highway, instead of legislating for them, we design the car through IoT so that it reduces their speed or if their car turns off, it starts it and moves.
In my opinion, cyberspace is one of the places where we can greatly benefit from this middle-ground rule and use it for societal control. Legislation, trial, and fining inevitably involve a form of violence and may have negative effects on society, but technological regulation does not entail these.
Contemporary Jurisprudence: What are the challenges and harms of fiqh’s involvement in legislation in cyberspace, and what should be done to overcome these challenges and harms?
Qotbi: We have many diverse topics where addressing them in cyberspace with a legal and fiqh approach is challenging; but I interpret the challenge as one that affects other issues, and until resolved, other issues cannot be solved; for example, privacy is a very serious matter ahead of us that we truly have not clarified its status. This is where one sees that the minimal approval approach does not solve the work, but rather we must seek to solve it with a maximal approach. In cyberspace, the issue of privacy is very important. Now, as soon as I enter the internet, I am not merely using the internet but giving all my personal, identity, and intellectual information to it, and it in fact enters my privacy.
Another example in this discussion is human rights, which has various dimensions.
Also, in the field of news and information dissemination, sometimes publishing a fake news and a like and repost of it can bring a country down. Here, the rule of no harm can be raised, because this like, this repost, and this publication is truly harmful, sometimes to a person, sometimes to a country, sometimes to…
Discussions of material and immaterial rights like intellectual property, intellectual ownership, and personal rights are also very important in cyberspace fiqh. In the same Protection Law that came to parliament, if we ask ourselves what jurisprudential rule is the basis of this law from a fiqh perspective, most of it returns to blocking means and preliminaries, and Sunnis are more adherent to this chapter, and it is not among our original rules. Blocking means says to prevent the formation of haram, whereas in jurisprudential discussions, we say if a haram forms, stop it or try it. But when we say filter, it means blocking means. This rule among jurisprudential rules is a marginal rule for us, whereas if it is so important in cyberspace fiqh, a comprehensive discussion must be held for it.
The rule of expediency is also very important in cyberspace. That in legislation, we must sacrifice individual expediency for collective expediency is clear; but sometimes in cyberspace, we must sacrifice one collective’s expediency for another collective’s; for example, large stores like Digikala or large businesses like Snapp have a significant impact on small businesses; now, should the expediency of which collective take precedence over which? Should that large store, which is a large community, be sacrificed for those small businesses, or should those small businesses be sacrificed for the large one, or are there other ways?
One of our major challenges in cyberspace is enjoining good and forbidding evil. In the real space, I have a logic for myself that ultimately Sharia has told us: if you encounter someone committing a haram act, and you have the ability to admonish them, and you deem the admonition beneficial, and no danger threatens you, then by combining these four conditions, you must admonish them and perform this obligation. Now, the question arises: in a channel or page where something contrary to Sharia is occurring, how should one perform enjoining good and forbidding evil? Is it sufficient to simply leave that page, or should one stay and continuously dislike and criticize? Does my leaving strike a blow to a page that, for example, has 5 million followers? Here, it is necessary to design models for enjoining good and forbidding evil in cyberspace so that when we perform it, we know we have fulfilled our duty.
Another important issue is legitimate freedoms. Some freedoms in the real space are legitimate, like for half an hour a mourning procession passes through a street and occupies the street space, or for a wedding, we occupy a street for a few minutes. Now, what is the limit in cyberspace? Until where am I free to go and tweet? Is creating a channel free, or must permission be obtained from the government for it? How much can my income from networking be?
These are the jurisprudential-legal points and challenges in the realm of cyberspace.
Contemporary Jurisprudence: What are the requirements of legislation for cyberspace?
Qotbi: One of the requirements is that our focus should be on socially effective actions, not individually effective actions or social actions with little or no impact.
The second requirement is to view cyberspace law in interaction with real space laws; for example, if we are writing business laws for cyberspace, they should interact with shop and guild business laws, and there should be no conflict or inconsistency between them.
The third requirement is of the nature of consideration, and that is that our law should not hinder the development of cyberspace. Currently, one of the most important disputes and conflicts that the government has with the people, especially startups and active cyberspace businesses in society, is that they say your laws tie our hands and you always say don’t and no… . Whenever something happens, you cut the internet or reduce its speed, whereas with this action, my business suffers great damage. This point must also be considered.