ARTICLE 19 is deeply concerned about Tunisian authorities’ use of a recently adopted decree-law on cybercrime to prosecute critics and crack down on dissent. The Tunisian Parliament must reject this decree, which severely threatens freedom of expression and privacy.
Decree-law No. 54 of 2022 on combating offences relating to information and communication systems (the Decree-law) was issued on 13 September 2022. The stated purpose of the Decree-law is to “to lay down provisions aimed at preventing and punishing offences relating to information and communication systems, as well as those relating to the collection of related electronic evidence”. But rather than being aimed at combatting actual cybercrimes, much of the focus of the Decree-law lays on the criminalisation of a wide range of online expression, demanding heavy prison sentences for offences such as the dissemination of “fake news”, falling well below international standards on freedom of expression and privacy. And indeed, since the Decree-law was issued, Tunisian authorities have opened several criminal investigations to prosecute media outlets, lawyers, and students for criticising government officials or other forms of protected speech.
ARTICLE 19 has analysed the Decree-law against international standards as part of the Programme d’appui aux médias en Tunisie 2.
- The Decree-law is incompatible with the principle of legal predictability. Most of the offences in the Decree-law provide for prison sentences. The principle of legal predictability requires that sentences which can amount to imprisonment be regulated in the Criminal Code itself. Those subject to the law need to be able to regulate their conduct with certainty, which requires that they find any criminal provisions imposing prison penalties with ease.
- Many of the offences in the Decree-law are already criminalised in other legal texts. Crimes included in the Decree-law such as defamation, the dissemination of child sexual abuse material or hate speech are already criminalised in other legal texts, namely the Criminal Code, Decree-law No. 115 of 2011 on Freedom of the Press, Printing and Publishing or the Telecommunications Code, with different penalties applicable to what are effectively the same offences. This is incompatible with legal certainty requirements and increases the possibility of arbitrary application of these provisions.
- Several provisions criminalise protected online speech rather than cybercrime. The Decree-law contains provisions such as the prohibition of dissemination of false news that are not in line with international freedom of expression standards and that are being used to prosecute journalists, human rights defenders, and critics of government. From a comparative perspective, the Decree-law introduces several offences that do not exist in instruments like the Budapest Convention. The offences in the Decree-law therefore go beyond those offences that are internationally recognised to constitute cybercrimes.
- The penalties in the Decree-law are excessive and disproportionate. The sentencing regime in the Decree-law is excessively harsh, including for content-based offences. International human rights law only allows for the sanction of imprisonment to be the prescribed for the worst speech offences, such as incitement to genocide.
- The Decree-law grants Tunisian authorities far-reaching investigatory powers and lacks procedural safeguards for human rights protections. The Decree-law mandates general and indiscriminate data retention by telecommunication service providers and introduces overly broad data access and interception powers for government authorities. Procedural safeguards and human rights protections, such as a right to be notified of surveillance measures and a right to appeal, are markedly absent throughout the Decree-law, despite a general reference to human rights commitments in its Article 2.
The Decree-law will be subject to approval by the newly constituted Assembly of the Representatives of the People. We call on the Tunisian Parliament to reject the Decree-Law.