While the Internet may be partly free in practice since the ousting of President Ben Ali, the repressive laws that formed part of the censorship apparatus of his government remain. There is therefore a real danger that free speech on the Internet may be stifled again as long as they are still on the statute book.
(ARTICLE 19/IFEX) – In March 2012, ARTICLE 19 analysed the state of Internet freedom in Tunisia. In particular, we examined the compatibility of the Tunisian legal framework governing the Internet against international and comparative standards for the protection of freedom of expression and the right to privacy.
Our analysis shows that the case for reform in this area is overwhelming. While the Internet may be partly free in practice since the ousting of President Ben Ali, the repressive laws that formed part of the censorship apparatus of his government remain. There is therefore a real danger that free speech on the Internet may be stifled again as long as they are still on the statute book.
ARTICLE 19’s key concerns relate to several provisions of Decree No 97-501 of 14 March 1997 concerning value-added telecommunications services (‘Telecommunications Decree’) and the Regulations of 22 March 1997 concerning the specifications for setting up and operating value-added Internet telecommunications services (‘Internet regulations’), which are in clear breach of international law. In particular, the decree and regulations make Internet Service Providers (ISPs) liable for third-party content without any exceptions. Most disturbingly, they impose an obligation on ISPs to monitor and take down content contrary to public order and ‘good morals’. Other problematic provisions include the obligation of ISPs to submit a list of their subscribers on a monthly basis and the ban on the use of encryption technologies without prior approval from the authorities. In addition, we remain concerned that the new Press Code, which also applies to online expression, continues to criminalise defamation, and that the hate speech provisions are too vague.
At the same time, the absence of Internet regulation in certain areas is to be welcomed. In particular, ARTICLE 19 believes that it is unnecessary to adopt legislation to address only online content for the simple reason that the laws that regulate content are of general application, ie they apply offline and online. Similarly, there is no need to regulate bloggers and citizen-journalists other than by way of the same laws that apply to everyone else for reasons we explain in our background paper. By contrast, mass media laws should not be applicable to citizens exercising their freedom of speech. However, bloggers and any other person engaged in the activity of journalism should benefit from the protection of sources.
KEY RECOMMENDATIONS
– The provisions governing ISP liability in the Telecommunications Decree (Articles 1 and 14) and Internet Regulations (Article 9) should be removed and replaced with provisions granting immunity to intermediaries for third-party content.
– The Decree and Regulations should prohibit intermediaries from monitoring content travelling across their networks;
– The law should be amended to require that only the courts may grant a blocking/filtering/removal order subject to the principles of necessity and proportionality;
– Article 11 of the Internet Regulations which bars the use of encryption technologies without prior approval from the authorities should be removed;
– Article 8 of the Internet Regulations which requires ISPs to submit a list of their subscribers to the authorities on a monthly basis should be repealed;
– Article 7 of the Telecommunications Decree which requires ISPs to obtain a licence from the ministry of communications should be repealed;
– Bloggers and citizen journalists should not be regulated other than by way of the same civil and criminal laws that apply to non-internet users;
– The Press Code should be amended to entitle bloggers to source protection.
The Press Code should be amended to decriminalise defamation. In addition, the hate speech provisions should be more tightly drafted along the lines of ARTICLE 19’s Camden Principles on Freedom of Expression and Equality, which elaborate on this issue.
