Jihene Ferchichi is JURIST’s staff correspondent in Tunisia. She reports from Tunis.

It is not unusual for a country like Tunisia to witness increased propagation of fake news and rumors, considering the deteriorating socio-economic situation the country has been experiencing the past few years. In this context, the State has deemed it necessary to intervene to limit the dangerous consequences of such practices. Thus,  Decree No. 54 on Combating Crimes Related to Information and Communication Systems was promulgated and published in the Official Journal last month, on September 13rd, 2022.

The first thing any reader of the decree will notice is that this legal text puts the sword of repression and fear on the necks of citizens and journalists and establishes self-censorship. It unfortunately affects the universal human rights enshrined in both domestic laws in Tunisia as well as international agreements. Among these rights are the right to think, the right of free expression, and the right to privacy. In Article 2 of the decree, communication providers are obligated to save all data related to communication traffic and communication peripherals. This includes preserving the geographical location of the user for a period of no less than two years, depriving citizens of their right to privacy.

The third subsection, titled Rumors and Fake News, Article 24, paragraph one reads:

[It] is punishable by imprisonment for five years and a fine of fifty thousand dinars anyone who intentionally uses networks, information and communication systems to produce, promote, publish, send or prepare false news, data, rumors, fake or forged or documents falsely attributed to others with the aim of infringing the rights of others or harming public security or national defense, or spreading terror among the population.

Then it continues to say:

[An individual] shall be punished with the same penalties prescribed in the first paragraph whoever intentionally uses information systems to publish or circulate fake or forged news or documents or data that includes personal data or attribute untrue matters with the aim of defaming others or distorting their reputation or harming them materially or morally or inciting attacks against them or promote hate speech. The prescribed penalties shall be doubled if the targeted person is a public official or assimilated public official.

The crimes in the decree are described in vague and ever-changing terms, such as “spreading terror among the population” and “harming public security” contradicting the principles of criminal law, especially those relating to the legality of crimes and penalties requiring accuracy in determining the elements of the crime. In addition, the text does not specify what is “false news”, nor does it identify the criteria that must be followed to determine whether the news is actually false. This opens the door for interpretations and gives the administration full discretion.

The decree came at a time of frequent attacks against journalists and the press. The decree is simply a new tool to restrict and silence voices opposing the unilateral path followed by the President of Tunisia, Kais Saied. We can conclude that the State has made a choice to resort to filling prisons with perpetrators of “expression crimes” through easy injunctive solutions instead of developing mechanisms to better manage social media.

Decree No. 54 moreover imposes penalties in a manner disproportionate to the crime, representing a flagrant violation of freedom of expression and media. Journalists are made vulnerable to the consequences of court proceedings as a result of their positions and statements. This decree will contribute to the continuing deterioration of Tunisia’s rank in the Press Freedom Index, which witnessed a regression from being ranked 73rd out of 180 in 2021 to 94th out of 180 in 2022.

In comparison to the Tunisian Constitution, the decree creates stark contradictions.  Even the new constitution implemented earlier this year inherited the chapters on rights and freedoms from the 2014 constitution. Yet, there is no point in having a constitution valuing those rights and freedoms when the government later just issues a decree that contradicts it, especially disregarding the chapter in the constitution outlining the appropriateness and proportionality between the restrictions placed on rights and freedoms and the reasons for these restrictions.