ARTICLE 19 is all the more surprised that a decree establishing a regulatory authority was adopted on 2 November 2011. Decree 2011-116 has been the object of numerous analyses and debates throughout 2011, and lays the grounds for a new and independent broadcasting sector. ARTICLE 19 calls on the initiators of the Article to recall the draft. ARTICLE 19 also urges the government and Constituent Assembly to take all necessary steps to implement Decree 2011-116, adopted on 2 November 2011, which creates the Independent High Authority for Audio visual Communications (also known by its French acronym ‘HAICA’). 

Post-revolutionary Tunisia: Reforming laws on media regulation

In July 2012, the Committee of the Constituent Assembly of Tunisia responsible for the establishment of Constitutional Institutions prepared an Article aiming at reforming the entire information sector. The Article consists of one provision which establishes “a public body responsible for the organization, regulation and development of the information industry/sector, and for guaranteeing freedom of expression and information, the right of access to information and the consecration of a pluralistic and credible media landscape“.  The provision further states that the body shall have “administrative and financial autonomy”. It shall be composed of nine members, who should be “independent, neutral and honest and with skills and experiences”.  The Article goes on to state that: “The members shall be elected by the legislature for a five-year period, and their term of office shall be non-renewable”.

ARTICLE 19 is alarmed that the Constituent Assembly of Tunisia could consider a fundamental reform of the entire information sector without providing sufficient legal basis for it. The issues regulated by the Article deal with regulatory control of all media and therefore deserve comprehensive and detailed regulation. In view of the quantity of legislation around the world dealing with the same matter, people should take note that the Tunisian Article, which contains only one provision, is unprecedented. 

ARTICLE 19 also notes that the regulation of the media engages the right to freedom of expression because by its very nature, regulation means a restriction on media freedom. Therefore media regulators should be aware of the international treaties defining the state obligation to protect, respect and promote freedom of expression. In particular, the media regulators in Tunisia should take into account Article 19 of the International Covenant on Civil and Political Rights (ICCPR), Article 9 of the African Charter on Human and Peoples’ Rights (ACHPR) and the Declaration of Principles on Freedom of Expression in Africa. ARTICLE 19 considers that the Article is not in compliance with Tunisia’s international obligations to respect, protect and promote freedom of expression and media freedom. Our specific concerns relate to the centralised structure of the regulatory control over the entire information sector; the lack of safeguards for media independence and the undemocratic manner of reforming the media. Article 19 is especially concerned regarding the following categories of the article. 

Centralised structure of regulatory control

The Article places seemingly the entire information sector under the centralised control of a regulatory body with a wide range of duties and limitless powers. This structure of information control cannot be described as being compatible with the basic principles of democracy. The media, telecommunications and postal sectors should be regulated by separate bodies with different powers and duties. The Article appears to place the Print Media under the control of the regulatory body.  It is important to take into account that while the broadcasting services should be regulated by the state and under control of a statutory body, the press should be self-regulated and controlled by a self-regulated press council established by the print media outlets whose members are elected from among major stakeholders such as journalists, media owners, publishers and representatives of the civil society.  In other words, the state should have no custody over the print media. 

Insufficient safeguards for independence

The independence of the authorities which exercise formal regulatory powers over the media is one of the essential safeguards for media freedom. Therefore the legislation should include provisions entrusting the regulatory authorities with powers, which enable them to fulfil their duties in an effective, independent and transparent manner.  The Article specifies that the regulatory body has administrative and financial autonomy. This provision does not ensure the independence of the body.  

ARTICLE 19 is alarmed that the Constituent Assembly of Tunisia considers a fundamental reform of the entire information sector without public participation and consultation with media professionals and experts, meaning that none of the local or international NGOs were consulted during drafted process. Participation requires proactive measures to protect stakeholder interests and to effectively balance their respective priorities.

Recommendations

  • ARTICLE 19 calls on the initiators of the Article to recall the draft.  
  • ARTICLE 19 also urges the Government and Constituent Assembly to return to and implement Decree 2011-116, adopted on November 2, 2011, which laid the ground for an independent broadcasting media with the creation of the Independent High Authority for Audiovisual Communications.

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