Tunisia: Repeal Criminal Defamation Law

(Tunis) – New criminal defamation charges against a university professor and a blogger for allegedly libeling public officials underscore the need to end the criminalization of defamation in Tunisia. They face up to two years in prison for publicly exposing alleged wrongdoing of the minister of foreign affairs and the general rapporteur of the constitution at the National Constituent Assembly.

Tunisian authorities should urgently amend the country’s law on defamation to make it conform to international norms on freedom of expression. These standards hold that defamation should be considered a civil matter, not a crime punishable with imprisonment. They also recognize that public figures, while entitled to protection of their reputation, should tolerate a greater degree of criticism than private citizens.

“Criminal defamation laws have a chilling effect on freedom of expression and work against the public interest by deterring people from speaking out about corruption or other misconduct by public officials.” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. “It is high time that Tunisia consigned its oppressive criminal defamation legislation to the dustbin of history.”

Authorities brought criminal defamation charges against Olfa Riahi, a blogger, on March 8, 2013. She had posted information about alleged misuse of public funds by Rafik Abdessalem before he stepped down as foreign minister in March, including hotel receipts apparently indicating that he had spent several nights in a leading Tunis hotel at public expense.

Two weeks earlier, Raja Ben Slama, a psychoanalyst and university professor, received a summons to appear before an investigative judge in Tunis to face the charge of defaming a public official. The charge arose from a complaint filed by Habib Khedher, a member of the National Constituent Assembly (NCA) representing the majority Ennahdha party, who is tasked with coordinating drafting of the constitution.

Riahi and Ben Slama, if convicted, could face imprisonment for up to six months under one provision of the law criminalizing defamation or up to two years if found guilty of wrongly accusing an official of wrongdoing.

In her blog on December 26, 2012, Riahi accused Abdessalem of having spent several nights at a Tunis hotel with an unidentified woman, at public expense. He has denied any wrongdoing and has said that the woman was his cousin. Riahi published further information on December 29, including documents apparently showing the transfer of money from a foreign government into a Foreign Ministry account.

Riahi had the status of a witness, not a defendant, when she first appeared in court on January 15 in Tunis. On March 8, however, she received a summons to appear before the investigative judge to face charges under articles 245 and 128 of the penal code and article 86 of the telecommunications code. The former include “defamation of a public official.” Under the telecommunications code, adopted in 2001, she is accused of “harming others or disrupting their lives through public communication networks,” which carries a penalty of one to two years in prison and a fine of up to 1,000 dinars (US$770). During the hearing on March 8, the investigative judge lifted a travel ban imposed on her on January 15.

The authorities charged Ben Slama after she criticized Khedher in an interview broadcast by Hannibal TV, accusing him of having distorted the agreed upon formulation of the draft constitution’s article on free speech to bring it closer to a more restrictive version favored by the Islamist Ennahda party.

The Commission on Rights and Freedoms, one of the six Constituent Assembly commissions appointed to draft the new constitution, had agreed, by a vote of 11 to 10, to formulate article 26 of the draft constitution in the following terms: “Freedoms of opinion, expression, media and creativity shall be guaranteed. Freedom of the media and of publication may not be restricted unless by virtue of a law protecting the rights, reputation, safety and health of others. Such freedoms shall, under no circumstance, be subject to prior censorship.”

In September 2012, however, the Constituent Assembly’s Coordination Commission, which has the role of piecing together the various chapters to create the overall draft constitution, sent back a revised chapter that reflected a more restrictive approach to free speech and limited its protection only to expression that is deemed not to infringe the rights or reputation of others, national security, public order, or public health and public morals.

Ben Slama accused Khedher of forcing the commission to adopt Ennahdha’s more restrictive formulation and said he “betrayed the commission’s confidence.” Ben Slama received a summons on February 21, and appeared before an investigative judge a week later. She is next due to appear on April 5.

Article 245 of the Penal Code defines defamation as “any allegation or public imputation of a fact that harms the honor or the esteem of a person or official body.” Article 247 prescribes a penalty of up to six months in prison and a fine of 240 dinars (US$168) for defamation of an individual or state institution (corps constitué); article 128 provides for a sentence of up to two years for anyone who is convicted of accusing a public official of committing an offense while holding office without having evidence to prove the accusation.

The transitional authorities who governed Tunisia following the uprising that overthrew President Zine el Abidine Ben Ali in 2011 amended the press law in force under the ousted president. This law had provided a heavier penalty for defamation of members of the government, parliamentary deputies, public officials, or individuals acting on behalf of the public authorities than for defamation of ordinary citizens. Under the amended law passed in 2011, defamation remained a criminal offense punishable with a fine of up to 2000 dinars (US$1,278) but without a provision for a prison term for defaming a public official.

“It is outrageous that Tunisia’s judicial authorities are still bringing criminal defamation charges against bloggers and others that could result in their imprisonment for exercising their right to free speech,” Goldstein said. “Tunisians have indicated clearly that this should not be part of their future.”

Criminal prosecution for peaceful criticism of public officials violates international human rights law and standards. Officials are entitled to protection of their reputation, including protection against defamation, but as individuals who have sought to play a role in public affairs they should tolerate a greater degree of criticism than ordinary citizens. This distinction serves the public interest by making it harder for those in positions of power to use the law to deter or penalize their critics or those who seek to expose official wrongdoing, and it facilitates public debate about issues of governance and common concern, Human Rights Watch said.

The UN Human Rights Committee, the independent body of experts that provides the definitive interpretation of the International Covenant on Civil and Political Rights (ICCPR), has said that “defamation laws must be crafted with care to ensure that they… do not serve, in practice, to stifle freedom of expression. All such laws, in particular penal defamation laws, should include such defenses as the defense of truth and they should not be applied with regard to forms of expression that are not, of their nature, subject to verification.

“At least with regard to comments about public figures, consideration should be given to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice. … States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.”

Tunisia is a state party to the ICCPR and is bound by its provisions.

“The National Constituent Assembly has a key responsibility to protect and nurture the right to free speech that was so heavily curtailed through the use of criminal defamation during the years before the 2011 uprising,” Goldstein said. “Tunisia should repeal all provisions of the penal code that could be used by powerful individuals and prosecutors to stifle criticism or dissent and restrict public debate.”