Tunisia: Draft law on the elimination of violence against women contains vague provisions threatening free expression
31 Mar 2017
The draft law on the elimination of violence against women in Tunisia, which is currently being discussed by the Committee of Rights and Freedoms of the Assembly of People's Representatives, contains provisions that may be used to restrict freedom of expression, ARTICLE 19 said today.
"As much as our organisation appreciates the efforts of the Tunisian state to seek to eliminate violence against women, we express our deep concern about vague provisions of the bill that criminalise expression in a blanket manner and call upon Parliament to review it and amend these issues before it is ratified," said Saloua Ghazouani, director of ARTICLE 19 in the Middle East and North Africa.
The bill, prepared by the Ministry of Women, Family and Children and approved by the Council of Ministers since July 2016, proposes a two-year prison sentence for "verbal" sexual harassment and a one-year prison sentence for anyone who "verbally" harasses a woman in a public place.
ARTICLE 19 calls on the authorities to conduct a partial review of the bill to make it conform to the obligations of Tunisia under international law with respect to the right to freedom of expression.
"The bill contains vague and ambiguous terms that can lead to broad readings and interpretations, and leaves a great discretionary power to law enforcement’ officials who may abuse it to restrict freedom of expression," said Ghazouani.
In this regard, we are particularly concerned about the wording of Article 3 of the draft law, which defines "moral violence" against women as "any verbal assault, such as defamation, insult ... and other acts or statements that undermine the human dignity of women, or are intended to intimidate or control them", without specifying precisely these "acts" and "statements" include.
According to the current wording of this chapter, any statement or speech can be construed as constituting a "verbal assault” on women or an attempt to "control" or "intimidate" them.
Therefore, in order for the bill to conform to international standards on freedom of expression, we call for the clarification and narrowing of the threshold of what constitutes, in practice, “violence against women”.
"The law should also provide sufficient guidance to those charged with its implementation, to enable them to understand the types of expression that are subject to restriction and those which are not," added Ghazouani.
ARTICLE 19 considers that the use of vague and ambiguous terms such as "acts, signs or words" that "impair the dignity or decency of others" makes the definition of sexual harassment, especially verbal, overly broad and contains concepts that cannot be defined legally and which open the door to multiple interpretations and potential abuses in the application of the law.
According to Article 16 of the draft law, "Anyone who deliberately harasses a woman in a public place shall be punished by imprisonment for one year for any act, statement or sign that would impair her dignity, honour or shame her."
This Article defines harassment in a broad and unclear manner. Unless vague terms such as "impair her dignity" or "shame" are defined, this article will be difficult to apply and will be open to arbitrariness in application.
ARTICLE 19 proposes that the definitions in the draft law be more precisely defined to avoid abuse, particularly in light of the one-year prison sentence imposed by Article 16.
Article 11 of the bill states that "public and private media shall be aware of the dangers of violence against women and methods of combating and preventing it, and prohibits the dissemination and publication of information materials containing stereotypes, scenes, statements or acts that are offensive to the image of women or promote violence against women or make violence seem trivial”.
First, it is not clear how both the obligation and the prohibitions contained in this article will be applied. Prohibiting the publication or dissemination of information materials containing "stereotypes", "statements or actions" that are "offensive to the image of women" or "devoted" to violence against women poses a problem with the broad definition of the concept of "violence against women".
Second, none of the important elements of this chapter have been defined, which opens the door to many interpretations of what constitutes, for example, a "stereotype" and what acts are included in the subjective categories of "promotion" of violence against women or "offensive".
In the opinion of ARTICLE 19, it is necessary to rephrase the provisions of this article to specify its content. Legal consequences for violating this Article should also be clarified.
Background to International Standards
The right to freedom of expression is not an absolute right and can be restricted by international standards, but only provided that such restrictions are defined by a legal text that is sufficiently precise so that the individual can control his conduct accordingly.
According to the International Covenant on Civil and Political Rights, such restrictions can only be imposed on "respect for the rights or reputations of others and the protection of national security, public order, public health or public morals." The restrictions must be "necessary and proportionate".
The requirement of necessity requires that there is an urgent social need for such restrictions and that the State demonstrates a direct and immediate link between the expression and the public interest to be protected.
The requirement of proportionality means that in the case of a less arbitrary procedure allowing the same result as the more arbitrary procedure, the less arbitrary procedure must be adopted.
Read our legal analysis of the draft law here.
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