Statement

Tunisia: Draft proposition on media regulation insufficient and incompatible with international standards

ARTICLE 19 is concerned about a draft Article on media regulation at the Constituent Assembly of Tunisia. The Article creates a structure of regulatory control over all media which is not compatible with the basic principles of democracy. The Article contains insufficient safeguards for media freedom. Moreover despite its fundamental character the Article was drafted without public debates.  

ARTICLE 19 is all the more surprised that a decree establishing a regulatory authority was adopted on November 2, 2011. Decree 2011-116 has been the object of numerous analyses and debates throughout 2011, and lays the grounds for a new and independent broadcasting sector.

ARTICLE 19 calls on the initiators of the Article to recall the draft. ARTICLE 19 also urges the government and Constituent Assembly to take all necessary steps to implement Decree 2011-116, adopted on 2 November 2011, which creates the Independent High Authority for Audiovisual Communications (also known by its French acronym ‘HAICA’).

In July 2012, the Committee of the Constituent Assembly of Tunisia responsible for the establishment of Constitutional Institutions prepared an Article aiming at reforming the entire information sector. The Article consists of one provision which establishes “a public body responsible for the organization, regulation and development of the information industry/sector, and for guaranteeing freedom of expression and information, the right of access to information and the consecration of a pluralistic and credible media landscape" (unofficial translation).  The provision further states that the body shall have “administrative and financial autonomy”. It shall be composed of nine members, who should be “independent, neutral and honest and with skills and experiences”.  The Article goes on to state that: “The members shall be elected by the legislature for a five-year period, and their term of office shall be non-renewable”.

ARTICLE 19 is alarmed that the Constituent Assembly of Tunisia could consider a fundamental reform of the entire information sector without providing sufficient legal basis for it. The issues regulated by the Article deal with regulatory control of all media and therefore deserve comprehensive and detailed regulation. In view of the quantity of legislation around the world dealing with the same matter, we note that the Tunisian Article, which contains only one provision, is unprecedented.

ARTICLE 19 notes that the regulation of the media engages the right to freedom of expression because by its very nature, regulation means a restriction on media freedom. Therefore media regulators should be aware of the international treaties defining the state obligation to protect, respect and promote freedom of expression. In particular, the media regulators in Tunisia should take into account Article 19 of the International Covenant of Civil and Political Rights (ICCPR),[1] Article 9 of the African Charter on Human and Peoples’ Rights (ACHPR)[2] and the Declaration of Principles on Freedom of Expression in Africa.[3]

 

ARTICLE 19 considers that the Article is not in compliance with Tunisia’s international obligations to respect, protect and promote freedom of expression and media freedom. Our specific concerns relate to the centralised structure of the regulatory control over the entire information sector; the lack of safeguards for media independence and the undemocratic manner of reforming the media.

Centralised structure of regulatory control

The Article places seemingly the entire information sector under the centralised control of a regulatory body with a wide range of duties and limitless powers. This structure of information control cannot be described as being compatible with the basic principles of democracy. The media, telecommunications and postal sectors should be regulated by separate bodies with different powers and duties.

State regulation of the Print media

The Article appears to place the Print Media under the control of the regulatory body.  ARTICLE 19 notes that while the broadcasting services should be regulated by the state and under control of a statutory body, the press should be self-regulated and controlled by a self-regulated press council established by the print media outlets whose members are elected from among major stakeholders such as journalists, media owners, publishers and representatives of the civil society.  In other words, the state should have no custody over the print media.

Insufficient safeguards for independence

The independence of the authorities which exercise formal regulatory powers over the media is one of the essential safeguards for media freedom. Therefore the legislation should include provisions entrusting the regulatory authorities with powers, which enable them to fulfil their duties in an effective, independent and transparent manner.  The Article specifies that the regulatory body has administrative and financial autonomy. This provision does not ensure the independence of the body.  

• The Article is silent in respect to the position of the regulatory body in the state administrative system. Normally media laws proclaim the independence of the regulatory body and establish that structurally it is a separate legal entity. The formation of a separate legal entity allows for functional separation of the regulatory body from the government or other entities, and limits the risks to impartiality.
• Furthermore in contrast with international standards, the Article does not prohibit any body or person other than a court or judge from instructing or overruling any of the decisions of the regulator.
• The Article does not specify the powers of the regulatory body. This is problematic both in terms of its independence from the government and the protection of media against misuse of powers by the broadcasting body. Normally regulatory bodies are responsible for the implementation of the legislation and are given specific powers so that it can act on a case by case basis, and adopt regulations and guidelines.
• The Article also fails to indicate the sanctions which the regulatory body can impose and the prosecutors which it should follow when enforcing the law. Neither does the Article specify the nature of the decisions of the regulatory body, whether they are binding, and the persons they can target.
• We note that in order to be independent, the regulatory body should be equipped with sufficient financial resources. There should be legal arrangements for the funding of the regulatory body, in accordance with a clearly defined plan, so as to allow it to carry out its functions fully and independently. The budget allocation procedure should be objective and transparent. The regulatory body should be able to make a reasoned proposal for its budget. Any refusal by the government to approve the budget should be duly explained.

Lack of safeguards regarding the appointment and dismissals of its members

The Article does not ensure the autonomy of decision-making of the regulatory body because it does not contain rules on the appointments and dismissals of its members. The provision setting out that the regulatory body shall be appointed by the parliament is also not sufficient guarantee for independence.

• Noting that governments often misuse their parliamentary majority to fill regulatory bodies with party loyalists, we consider that the best practice is the nomination of members of the regulatory body by public bodies and civil society organisations, so that they represent the full spectrum of society.
• Alternatively the appointment should require the involvement of other parties besides Parliament, and a qualified majority vote in parliament to prevent party loyalists from entering the regulatory body. The members of the regulatory body should not be members of the parliament or the government, or hold any other political mandate for the period of their functions.
• The incompatibility rules should go beyond politics to the broadcast industry, as business interests might impinge on the independence of the regulator. They include the exercise of any functions, or possession of any interests, in enterprises or other organisations in the media or related sectors, which might lead to a conflict of interest in connection with membership of the regulatory authority.

Lack of system of checks and balances

ARTICLE 19 considers that the Article does not contain safeguards for media freedom because there is no system of checks and balances ensuring that the regulatory body does not stray from its mandate, engage in corrupt practices, or become inefficient. The system of check and balances should include requirements to public accountability, transparency and auditing requirements. Normally public accountability requires regular reporting by the regulatory body to Parliament.

Insufficient public consultation

ARTICLE 19 is alarmed that the Constituent Assembly of Tunisia considers a fundamental reform of the entire information sector without public participation and consultation with media professionals and experts. Participation requires proactive measures to protect stakeholder interests and to effectively balance their respective priorities.

Recommendations

• ARTICLE 19 calls on the initiators of the Article to recall the draft.  
• ARTICLE 19 also urges the Government and Constituent Assembly to return to and implement Decree 2011-116, adopted on November 2, 2011, which laid the ground for an independent broadcasting media with the creation of the Independent High Authority for Audiovisual Communications.

Find more on

• Tunisia
• Middle East & North Africa
• Media regulation