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Tunisia: Cybercrime law investigations expose new threats to freedom of expression

Over the past three months, the Tunisian authorities have tightened restrictions on freedom of expression, issuing a new decree-law on cybercrime and using it to open criminal investigations against at least four people, Amnesty International said today.

Tunisian judicial officials are investigating the editor of a news outlet and a prominent lawyer over their public criticism of top government officials, while a university student, whose Facebook page covers a neighbourhood that has recently seen police clash with protesters, is also under investigation. They could face heavy prison sentences under Decree-Law 2022-54 on Cybercrime, issued on 13 September 2022 by President Kais Saied. 

“With the world turning its eyes to Tunisia’s parliamentary election at the end of the week, the authorities should be doing everything they can to ensure a pre-election environment that welcomes free expression and particularly dissent. Yet prosecutors are instead investigating critics under a repressive new cyberlaw which is just the latest attack on human rights legislative safeguards by President Saied,” said Heba Morayef, Amnesty International’s Regional Director for the Middle East and North Africa.

“The law is rife with overly broad and vaguely worded provisions, which means it can easily be used as a tool of repression. It also risks dissuading people from using the internet for fear of digital surveillance and possible prosecution. The authorities should repeal it immediately and drop all investigations based upon it.”  

Since President Saied claimed far-reaching powers in July 2021, judicial authorities have investigated or prosecuted at least 31 people, including journalists, lawyers, and members of Tunisia’s dissolved parliament, over their public criticism of the authorities. 

The new decree-law mandates heavy prison sentences based on ambiguous terms such as “fake news,” and grants the authorities broad powers to monitor people’s internet use and collect personal data on the vague grounds that it “might help reveal the truth” or “be necessary to the investigation” of a suspected crime.

Criminal investigations

On 14 November, police questioned Nizar Bahloul, the editor of the Tunisian online news outlet Business News, about an opinion piece published on 10 November criticizing Prime Minister Najla Bouden. Bahloul told Amnesty International that police showed him an investigation order signed by Justice Minister Leila Jaffel citing accusations under the new law of spreading “fake news” and “defaming” a state official.

That followed a criminal investigation that prosecutors opened on 28 October against lawyer Mehdi Zagrouba, accusing him of defaming Jaffel in a Facebook post on 23 October. In the post, Zagrouba accused Jaffel of “fabricating” court files and causing prosecutors “to carry out your agenda.” Zagrouba told Amnesty International that his post referred to what he described as bogus court investigations instigated by Jaffel against judges whom Saied had dismissed arbitrarily.

Also on 28 October, police arrested university student Ahmed Hamada, seized his computer and phone. He was detained. Then, on 31 October, they questioned him about data from his computer and a Facebook page he created about Hay Tadhamoun, a working-class district of Tunis where police recently clashed with protestors, said lawyer Samia Abbou, who attended the questioning.

He could also face up to 12 years in prison for joining or helping lead a group to attack people or property under Tunisia’s penal code. Meanwhile, the cybercrime law mandates five years in prison and a fine for willfully and maliciously spreading false information through telecommunications networks. The penalties are doubled if the act targets a public official.

Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which Tunisia has ratified, guarantees the right to freedom of expression. Any restrictions on that right must be strictly necessary for a legitimate aim and provided by law with sufficient precision to allow people to regulate their conduct accordingly. Restrictions based on ambiguous, overly broad terms such as “fake news” fail to meet that requirement. 

Under international human rights standards, defamation should be treated as a civil, not criminal, matter, and never punished with time in prison.

Surveillance and collection of personal data 

The Cybercrime decree-law fails to set clear limits and conditions for approving surveillance and data collection measures to ensure that they do not violate human rights. Under Articles 9 and 10 of the decree-law, judicial authorities may order the surveillance of people’s internet use and the collection of their personal telecommunications data from service providers on the vague grounds that it “might help reveal the truth” or “be necessary to the investigation” of a suspected crime. Under Article 35, the Tunisian authorities may share that data with foreign governments.

Article 9 also empowers certain members of judicial police to order the monitoring of internet traffic and seizure of data and devices based on written authorization from an unspecified and thus ambiguous source. 

Article 17 of the ICCPR guarantees the right to privacy. Any state interference in people’s private lives must be provided by law that “specif[ies] in detail the precise circumstances in which such interferences may be permitted,” according to official guidance on implementing the ICCPR by the United Nations’ Human Rights Committee.

Background

Criminal prosecutions for public criticism of authorities are not new in Tunisia, which retained an arsenal of Ben-Ali era laws that inappropriately criminalize free speech. Between 2017 and 2020, an increasing number of cases of bloggers or activists were investigated or prosecuted for criminal charges including defamation, insulting state institutions and “harming” others through telecommunication networks, solely in relation to the peaceful exercise of freedom of expression. 

Since July 2021, the focus of courts on prominent critics and perceived enemies of the president has increased, indicating growing intolerance for dissent. In addition, at least four of these investigations and prosecutions have involved civilians facing military courts.

For more information, please see Amnesty International’s public statement, released today – Tunisia: Repeal Draconian Cybercrime Decree.