If adopted, the amendments would prescribe a two-year jail sentence and a fine of three thousand Tunisian dinars against those convicted of publishing content “that could harm public order, good morals, sanctity of the private life, and the honour” of individuals and ”official institutions”.
In their proposal, the MPs argue that the penal code is not “up to date with technological developments, particularly in the information sector” and that there is a need to “protect the Tunisian society” from “behaviours and violations that exceed press freedom” such as insults and abuse. Indeed, Tunisia's penal code already criminalizes defamation. What this group of MPs seeks to do is create a special category for “cyber defamation”.
The proposal comes just a few weeks after Tunisia was invited to join the Budapest Convention on Cybercrime which requires signatories to have in places ”conditions and safeguards under its domestic law” that ”shall provide for the adequate protection of human rights and liberties”.
The bill, which is barely two pages long, also refers to a law that is no longer in force: the repressive 1975 Press Code, which regulated print media under the dictatorship of Zine el Abidine Ben Ali.
Following Ben Ali's ousting in 2011 and as part of reforms in favour of freedom of speech and press freedom, interim authorities adopted a new press decree (Decree No. 2011-115 of 2 November 2011) which replaces the 1975 Code and enshrines greater protections for press freedom. The 2011 decree guarantees journalists’ access to information, confidentiality of sources, abolished licensing requirements for print media and prison sentences for defamation and slander against journalists.
By proposing this bill, which seeks to restrict freedom of expression and references a repressive law that is no longer in force, one can only wonder how its supporters view Tunisian's progress in the areas freedom of expression and press freedom.
Their support for the bill marks a clear breach of their commitment to honour the 2014 Tunisian constitution that guarantees freedom of expression and the right to access information and communication networks, and bans prior censorship.
In a statement denouncing the bill, the Tunisian Syndicate of Tunisian Journalists noted:
هذا المشروع ينم عن عقلية استبدادية وتضييقية للحريات تحن إلى زمن الديكتاتورية، ويعكس جهلا فضيعا بمكاسب الثورة التونسية في مجال حرية الرأي و التعبير بدليل أن هذا المشروع يحيل إلى مجلة الصحافة لسنة 1975 والتي الغيت مباشرة بعد سقوط نظام بن علي. وهو ما يوحي بان النواب الذين اقترحوا المشروع يعيشون في عصر ما قبل الثورة.
…this bill is the result of a repressive mindset restrictive of freedoms, reflecting a nostalgia for the dictatorship era. It shows a a terrible ignorance of the gains of the Tunisian revolution in the areas of freedoms of opinion and expression since the bill refers to the 1975 Press Code, which was abolished immediately after the fall of the Ben Ali regime. This implies that the MPs who proposed the bill are living in a pre-revolutionary era…
In addition to referring to a legislation that is no longer in force, the seventeen MPs are using misleading language that implies that the internet in Tunisia is not regulated. One of the MPs who signed the proposal Mongi Harbaoui wrote on Facebook that the bill would protect individuals from “chaos and moral decay”.
In fact, even though Tunisia does not have a comprehensive cybercrime law, it does have in place unconstitutional laws that regulate online and offline speech like defamation, criticism of public officials and institutions, and content deemed to be in violation of “good morals” and “public order”.
Article 86 of the Telecommunication Code stipulates that anyone convicted of “harming others or disrupting their lives through public communication networks” may face up to two years in prison. The Penal Code has provisions that criminalise defamation and the spreading of content “liable to cause harm to public order or good morals”. Military institutions are also protected from criticism under provisions of the Military Code.
These provisions continue to be used today to prosecute and jail bloggers, activists and journalists. Just recently, blogger and member of parliament Yassine Ayari was sentenced by a military court to 16 days in jail for “undermining the morale of the army” over a 2017 Facebook post in which he mocked the appointment of a senior military commander. Ayari was previously jailed in late 2014, also over Facebook posts critical of the military institution.
Instead of updating the Tunisian judicial arsenal and bringing it in line with the constitutional protections of freedom of expression and press freedom, the proposed legislation only undermines such protections. It remains unclear when and if the bill will be debated in parliament, but that will likely result in fierce resistance not only from human rights groups but also from other MPs.