Tunisia: World Press Freedom Day highlights lack of progress on media reform
03 May 2012
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On UNESCO World Press Freedom Day on 3 May 2012, which is to be held for the first time in Tunisia, ARTICLE 19 warns that the Tunisian government has failed to implement the key media reforms initiated in the first year of the country’s transition to democracy. The current legal framework, ARTICLE 19 emphasises, lacks the clarity and specificity required to meet the basic requirements of the rule of law.
ARTICLE 19 therefore calls on the Tunisian government to make use of the May 3rd event as a golden opportunity to advance the media reform package, which was kick-started by the transitional government through the implementation of Decrees 41, 115 and 116.
The post-Ben Ali reforms
A free and independent media is essential to the development and sustainability of a vibrant democracy, and integral to realising the public’s right to a diversity of information and viewpoints. The media reforms, initiated by the transitional government in the aftermath of the revolution, replaced Tunisia’s arsenal of repressive media laws, including the 1975 press code. The reforms included legislative decrees 2011-41, 2011-115, and 2011-116:
- Decree 2011-41 (as amended by Decree 2011-54) concerning access to administrative documents marked the beginning of a new culture of transparency which should have taken immediate effect
- Decree 2011-115 (also known as the new press code) heralded a new chapter in Tunisia’s media freedom history by guaranteeing the protection of journalists from harassment and abolishing prison sentences for criminal defamation and a number of other speech offences. Decree 115 supersedes any previous and relevant provisions or laws, especially the 1975 press code.
- Decree 2011-116 laid the ground for a newly independent broadcasting media with the creation of the Independent High Authority for Audiovisual Communications (also known by its French acronym ‘HAICA’).
The formal adoption of Decree 41 on 31 May 2011, and of Decrees 115 and 116 on November 2, 2011, as highlighted by their publication in the official gazette, sent a welcome and clear message that Tunisia was rolling back the regime of censorship and secrecy that were the hallmarks of the Ben Ali era. It also signaled the country’s commitment to democracy and as such, these laws have been widely regarded by the international community as among the key achievements of the revolution to date.
At the same time, ARTICLE 19 has repeatedly stressed that those decree laws do not go far enough. More comprehensive media reforms are needed to bring Tunisia fully in line with its international obligations under international human rights law.
The situation since November 2011
Following the adoption of Decrees 41, 115 and 116, it was then incumbent upon the newly elected government to respect the media laws adopted by the transitional government, including by implementing those provisions that require government action, in particular the establishment of the HAICA to regulate broadcasting.
Instead, the last 5 months have witnessed a succession of contradictory statements and actions on the part of the authorities, with a number of negative results:
- Legal uncertainty, including among the judiciary, which undermines respect for the rule of law and access to justice, and contradicts the goals of the Tunisian revolution, just one year old;
- Delay of centrally important reforms for Tunisia's democratic transition including the introduction of administrative procedures for access to information and the establishment of an independent regulatory body for broadcasting;
- Confusion amongst media stakeholders, which also slows down Tunisia's democratic transition, risks having an adverse effect on freedom of expression and may discourage investment in media development.
Legal uncertainty and the rule of law
In the absence of clear messages on the part of the authorities regarding the implementation of Decree 115, the general prosecutor has continued to use the old press code against journalists, despite the fact that Decree 115 specifically states that it supersedes the 1975 press code.
Furthermore, the General Prosecutor has also continued to rely on provisions of the criminal code, which are in ARTICLE 19’s opinion, inconsistent with the spirit of the new press code, and clearly in breach of international standards of freedom of expression. They should not be relied upon, particularly when more appropriate provisions (that of decree 115) are available. The current situation is therefore one of unacceptable legal uncertainty and confusion, which seriously undermines the rule of law in Tunisia.
The Nessma TV case is a glaring example of how unsatisfactory the current situation is. The head of Nessma TV, Nabil Karoui currently faces up to three years in prison under article 48 of the old press code for defaming religion, and up to five years under article 121(3) of the penal code for distributing or displaying information ‘that can harm public order or good morals’ for broadcasting the animated film Persepolis, which contains a scene depicting an image of god. If Karaoui had been charged under section 53 of Decree 115, which criminalises statements intended to offend permitted religious rituals, he would only have risked a fine.
ARTICLE 19 does not support the use of criminal sanctions against journalists under any circumstances. For this reason, we believe that Decree 115 should be further reviewed and, among others things, its criminal provisions should be removed. Nonetheless, the Tunisian authorities should apply the provisions of Decree 115 rather than those of the criminal code which are inconsistent with it, and still less the provisions of the old press code which have been repealed. As the verdict in the Nessma TV case is due on 3rd May, it is also imperative that the Tunisian Government moves forward the revision of the penal code to bring it line with international standards for the protection of freedom of expression.
Media reform stalemate
ARTICLE 19 is further concerned by the lack of progress on broadcasting media reforms. Nearly six months after the adoption of Decree 116, the Tunisian government has still failed to establish the independent broadcasting authority, HAICA. Moreover, as previously highlighted by ARTICLE 19, fair and transparent licensing procedures for the allocation of the radio spectrum are still missing. Similarly, there are currently no rules for the regulation of broadcasting content. It is therefore paramount that the Tunisian government implements Decree 116 by taking the necessary steps to establish HAICA. Further legislation will be needed to fill the gaps in the current legal framework.
Implementation of the country’s freedom of information law has also been wanting. To our knowledge, there is currently no clear guidance clarifying the limited scope of the exceptions to the right of access to administrative documents guaranteed in the Decree. Furthermore, in the absence of an independent body overseeing implementation of Decree 41, it is unclear what administrative procedures the government have put in place to give access to administrative documents.
The world is watching Tunisia on World Press Freedom Day. On this occasion of global significance, ARTICLE 19 urges the government to take action immediately, using Decrees 41, 115 and 116 as stepping stones to more comprehensive media reform in line with international standards for the protection of freedom of expression. In particular, ARTICLE 19 calls on the Tunisian government to:
1. Respect and apply the provisions of the three Decrees 115, 116 and 41, and take immediate action to fully implement them, as the current situation of legal confusion and policy stalemate should simply not be acceptable to any authorities committed to respect for the rule of law and justice for all;
2. Initiate, in close consultation with media stakeholders and experts, and the HAICA members, a review of the remaining legal and policy reforms that are required to bring Tunisia into compliance with international law and standards. ARTICLE 19 particularly recommends that as a matter of priority, the review should focus on:
- The development of a broadcasting law, to complement the HAICA law, with the aim of strengthening the legal framework for licensing, spectrum assignment, content regulation and media pluralism;
- The governance structure of the public service broadcasters with the view of strengthening guarantees of their editorial independence and their responsibility to serve the public interest;
- The legal and regulatory framework for the assignment of radio spectrum and the provision of distribution services for broadcasting with the view to assuring the right of broadcasters to own and operate their own transmission systems;
- The full decriminalization of all press crimes;
- The adoption of a law on access to information, as such a law will be a more effective legislative instrument to protect the right to information than a decree. This new law should maintain the positive features of the Decree but address its deficiencies.
3. Embed guarantees of the right to freedom of expression in the new Constitution, and specifically protect the following elements of media freedom:
- There should be no prior censorship;
- There should be no licensing or registration system for the print media;
- There should be no licensing of individual journalists or entry requirements for practising the profession;
- The independence of all bodies with regulatory powers over the media, including governing bodies of public media, should be guaranteed;
- The right of journalists to protect their confidential sources of information should be guaranteed;
- Journalists should be free to associate in professional bodies of their choice.
- For further information, please contact Gabrielle Guillehem, ARTICLE 19 , email@example.com
- For ARTICLE 19 legal analyses of the decrees 41, 115 and 116, please refer to the following links:
- ARTICLE 19 analysis titled: Tunisia Press, Printing and Publication Code http://www.article19.org/resources.php/resource/2944/en/tunisia:-press-regulation
- ARTICLE 19 analysis on Draft Decree on the Freedom of Audiovisual Communications and the Creation of an Independent Higher Authority for Audiovisual Communication: http://www.article19.org/resources.php/resource/2942/en/tunisia:-broadcasting-regulation
- ARTICLE 19 analysis on the Decree on Access to the Administrative Documents of Public Authorities of Tunis: http://www.article19.org/resources.php/resource/2208/en/tunisia:-access-to-the-administrative-documents