On 20 June 2017, the Senegalese Parliament unanimously adopted a new Press Code. The Explanatory Memorandum explains that the Code aims, in particular, to establish a coherent and transparent legal framework that guarantees freedom of the press and promotes fair competition between the various media players. The Code also ensures equitable access to the media for citizens, political parties, civil society organisations, trade unions, employers’ organisations and the various schools of thought and opinion, which reflects the need to take account of the importance of pluralism and diversity. Furthermore, the Code is designed to respond to the evolution of new technologies with the setting up of a specific regime for the online press.
While the objectives of the Press Code are commendable, ARTICLE 19 is deeply disappointed by the adoption of this Code, which we believe represents a missed opportunity to make Senegalese law compatible with international standards on freedom of expression; the draft Code originally promised to decriminalise press offences. In the end, after more than 10 years of debate, this is not the case. Press offences have remained in the Code, and the notion of journalism has not changed.
In this legal analysis, ARTICLE 19 focuses on the advances and setbacks of the Press Code on freedom of expression. We conclude that, on the whole, the Code adopts many overly restrictive, even downright repressive, policies on freedom of expression. While the reference to self-regulation is a positive point, too many provisions penalise the work of journalists, whether it is the obligation to obtain a press card or the inclusion in the Code of certain journalist’s duties. The audiovisual sector seems to remain under the government’s supervision, to a large extent. The regime for online press companies remains problematic in many respects, including the criminal liability of the publisher, administrator or internet service provider if they do not promptly withdraw illegal content.
ARTICLE 19 also notes that the latest version of the Press Code was only shared with civil society, the day before its adoption by the Senegalese Parliament. To our knowledge, this latest version of the Code, which now includes several liberticidal provisions, has not been discussed with civil society. In addition, the Code was adopted following the use of the urgency procedure, in other words without thorough parliamentary scrutiny, which was in no way justified.
ARTICLE 19 calls on the Senegalese authorities to review the provisions of the Code fully and, for the time being, not apply its most repressive provisions so as to comply with their obligations under international law on freedom of expression.
Summary of recommendations
ARTICLE 19 considers that the new Senegalese Press Code is incompatible with international standards on freedom of expression. In our view, the Code should be fully revised in the light of international standards and its most repressive provisions, including administrative and criminal penalties in relation to the press, should not be applied.
- The definition of ‘journalist’ in the Press Code should be reviewed and reflect a functional approach to journalism in line with international standards.
- The duties of journalists should not be included in the Press Code but should form part of a separate code of ethics applied by a self-regulatory body. Such a self-regulatory body should not have exorbitant sanctioning powers. The rights and duties of journalists should be drawn up in accordance with international standards and good practices.
- The protection of the confidentiality of sources should be protected in the Code in accordance with the relevant international standards.
- The provisions of the National Press Card (Section 2, Articles 22 to 36 and Articles 198 and 199 of the Press Code) should be repealed. Any implementation of a press card regime should comply with international standards in this matter. In particular, it should be administered by a body independent of government on the basis of specific criteria that are non-discriminatory, reasonable and published in advance, and should be applied only when there are real space constraints.
- The criteria for the granting of direct State subsidies should be neutral and equitable with the ultimate aim of promoting media pluralism.
- Article 68 on the registration of press companies should be repealed.
- The principles and values, in particular Articles 57, 64 and 65, should be reviewed in order to bring them into conformity with the requirements of international law, in particular the three-part test of legality, legitimate aim, necessity and proportionality.
- The right of reply should be voluntary rather than mandatory; the special status of the holders of public office in Article 86 should be deleted;
- The reference to obligations under Article 88 should be deleted;
- Breaches of the right of reply should be resolved by the self-regulatory body or by a court, whose powers in this matter should be limited to that of ordering the publication of the reply;
- The Law relating to the regulatory body in the audiovisual sector must guarantee its independence;
- Article 179 should be repealed. Moderation systems for interactive content on websites should not be mandatory;
- Article 181 should retain only the possible civil liability of online media companies. Any reference to criminal responsibility should be abandoned;
- Section 3 should be completely revised with the aim of abolishing the large majority of the administrative and penal sanctions of this Section. In particular, Articles 192, 194, 198, 199, 201, 203, 204, 207, 208 and 225 should be repealed.