Freedom of press void of its meaning during the Ben Ali regime
Article 8 of the Tunisian Constitution of 1 June 1959 recognised and guaranteed freedom of press, of speech and of publishing. However, draconian laws and administrative practices overruled these constitutional freedoms and emptied them of their substance. The Press Code, promulgated by Act No. 75-32 of 28 April 1975, fits into this logic. Half of its articles have a repressive character.
For several decades, until the 2000s, the state held the monopoly in the audio-visual sector, owning the public television and radio stations. Unlike the print sector that was relatively more diverse, the audio-visual sector was not regulated by any specific legislation.
A new legislative framework since 14 January 2011
The media landscape underwent profound changes following the abolition of all control mechanisms after 14 January 2011 and the fall of the old regime.
In this context of liberation of expression, Tunisia adopted important legal texts:
- Decree Law No. 2011-115 of 2 November 2011 on freedom of the press, printing and publishing.
- Decree Law No. 2011-116 of 2 November 2011, on the freedom of audio-visual communication and the creation of the Independent High Authority for Audio-Visual Communication (HAICA).
These two legal texts were prepared by the transition government before the elections of 23 October 2011.
The new Tunisian Constitution adopted on 26 January 2014 recognized freedom of opinion, of thought, of speech, of press, of publishing and of printing in its Article 31, which prohibits the subjection of these freedoms to any prior control.
The Independent High Authority for Audio-Visual Communication (HAICA) contributed to the regulation of the audio-visual sector through the enactment on March 5, 2014, of four specifications relating to the conditions for obtaining licenses for private and community radio stations and television channels.
A still fragile legal framework
The application of this new legislation depends sometimes on the government in power and the means put in place. Thus, some TV channels whose license has been refused or who are still in the process of clarifying their status continue to broadcast while the government banned others in the name of the fight against terrorism without notifying the regulatory authority.
In addition, the Penal Code (as for example Article 245 on defamation) or the Telecommunications Code are still referred to for offenses by the press, which are however governed by Decree Law 115. The criminal law still contains rather repressive provisions for the press.
Access to information, a remarkable legislative progress
The legal framework in relation to media and transparency was reinforced since January 14, 2011 with Decree Law No. 41 of 26 May 2011 regarding access to administrative documents. Despite the progress this decree law presents, it lacked effectiveness and efficiency in practice given the bureaucratic bottlenecks inherent in the Tunisian public administration, but also because of the wide range of exceptions to the right to access documents that the decree law provided for. It was replaced by Organic Law No 22 of 24 March 2016 on the right of access to information. The new law guarantees the right to access information in contrast to Decree No 41-2011 that provided access to administrative documents of public bodies only. The adoption of this law, which contains limited exceptions in compliance with Article 32 of the Constitution, was considered a victory after a long battle between civil society organizations, the government and Parliament.
Free internet, until when?
In the internet sector, the legislative framework has difficulties to follow the information and communication boom following the end of police control over the Tunisian web after 14 January 2011.
Some measures, such as the creation of a Technical Telecommunication Agency (ATT) in November 2013, are designed to protect the Tunisian cyberspace. But no legislation on the fight against cybercrime has been adopted despite the drafting of several bills regarding the issue, often disapproved by cyber activists and a large part of civil society who reject the draconian measures and invasion of privacy rights.
A press awaiting self-regulation
Like many countries with a democratic tendency, no regulatory authority is foreseen for the print sector. Since the adoption of Decree Law 2011-115, a simple declaration to the District Court is sufficient to publish periodicals, which no longer require prior authorization. The Federation of Newspaper Directors and the Union of Journalists, however, work on the establishment of a self-regulatory body, a "Press Council". This body could be consulted for the distribution of public advertising, or on granting cards for professional journalists or to provide an opinion or serve as an Ombudsman Office in cases of disputes or defamation.