Tunisia: Draft Law on the National Agency to Manage Public Advertisements & Subscriptions -Legal Analysis

Tunisia: Draft Law on the National Agency to Manage Public Advertisements & Subscriptions -Legal Analysis - Media

In this analysis, ARTICLE 19 reviews the Tunisian Draft Law on the National Agency for the Management of Public Advertisement and Subscriptions(the Draft Law) for its compliance with international standards on freedom of expression.

ARTICLE 19 notes that under international human rights standards, States have a duty to create an enabling legal and regulatory environment that provides for the development of a free, diverse and pluralistic media. Financial support by public authorities to private media companies can contribute to maintaining or increasing pluralism and diversity in such media landscape, provided that critical safeguards are in place to prevent governmental influence over the media. In this respect, the Draft Law moves in the right direction as it provides for an independent process to administer public advertising and media subscriptions. The Draft Law foresees the creation of an independent public body – the National Agency for the Management of Public Advertisements and Subscriptions (the Agency)- to oversee public advertising and subscriptions for newspapers and periodicals on behalf of government  institutions.  Nonetheless, the Draft Law contains a number of provisions that are problematic from freedom of  expression perspective. In particular, it lacks sufficient guarantees that would prevent the interference with the media independence and fails to ensure the independence of the Agency.

More broadly, the Draft Law is part of wider reforms of  the media sector in Tunisia.  A number of civil society organisations, including ARTICLE 19, have previously expressed concerns regarding the regulatory reforms of the media ecosystem, including the lack of full consultations with all relevant stakeholders. In this respect, we are concerned that the Draft Law is being introduced without meaningful prior consultations with all stakeholders in the media sector and civil society.

ARTICLE 19 urges the Tunisian legislators to amend the Draft Law to address our concerns. We remain committed to supporting the reform process through constructive engagement.

Summary of recommendations

  • The protection of the right to freedom of expression, as well as one or more objectives of general interest (e.g. providing for a public advertising and governmental subscription process that is politically neutral and independent, as well as media pluralism), should be explicitly mentioned in the Law;
  • The Agency must be able to operate autonomously and impartially ni the public interest and must not be subject to interference by the Government or any public authority. The Agency should be accountable to the Parliament;
  • Additional detail should be on the precise procedure to follow for organisational approval, whether that involves director-level approval or rather approval from the board;
  • The Law should clarify the nature of the consultation with the special committee;
  • Ban public advertisements that disseminate political messaging or campaigning on behalf of political candidates or Election and political campaigning should be regulated by a separate legislation;
  • Suspend public advertising during general elections unless commissioned or approved by the independent electoral authority;
  • The power to appoint the members of the special Committee should be granted to a multi- stakeholder group that includes the government, the National Assembly, civil society and other relevant stakeholders, such as academia and sector experts, in order to guarantee the independence of the Committee;
  • The scope of the special committee’s role and decision-making powers should be clarified.
  • The Law should explicitly state that the allocation of public support will take place on the basis of fair and neutral criteria that it will be non-discriminatory and will never be based on content or viewpoint expressed in the media;
  • The Law should affirm that neither the allocation of public advertisements nor subscriptions will be used to undermine the editorial independence of media;
  • The Law should contain the institutional, organisational, and functional guarantees for the Agency to operate independently of the government in power and the economic or social powers;
  • The Law should explicitly provide for the stable and ongoing financial independence of the Agency;
  • The decisions of the Agency must be made publicly available, e.g. on the Agency’s website;
  • There should exist a right of appeal or judicial review against the Agency’s decisions.