On August 15, 2011, a Tunisian appellate court upheld a May 2011 order requiring the Tunisian Internet Agency (ATI) to censor Internet access for all Tunisians. The ATI intends to appeal the decision to the Tunisian Court of Cassation, the country’s highest court. Under new leadership after the January 2011 revolution, the ATI opened Tunisia up to the Internet fully for the first time in the country’s history. The ATI is using the resources at its disposal to advocate for freedom of expression via the Internet and against Internet censorship. Nevertheless, the Agency encountered resistance on two fronts: from the Tunisian courts, which ordered the ATI to block all pornographic material, and from the Tunisian military, which ordered the agency to censor certain politically objectionable sites and Facebook pages. If the ATI loses its pending appeal, the agency will, pursuant to judicial order, block a classified list of websites deemed morally objectionable that the government can update at will. The creation and enforcement of such a censorship list would violate Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Judicial censorship of the Internet in Tunisia combined with the political agenda advanced by the military would together represent a de facto state of censorship not much different from the one present under the regime of ousted former President Ben Ali.
Under the Ben Ali regime, the ATI blocked both culturally and politically objectionable content using censorship software installed at the Internet’s point-of-entry into the country. The newly elected legislature is facing pressure from progressive groups in the country to repeal old statutes that remain in force, including laws that proscribe jail time for nonviolent speech and structural modifications that effectively give the executive branch total control over the nomination, promotion and discipline of judges.
Article 19 of the ICCPR, to which Tunisia is a state party, provides that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” (emphasis added). According to General Comment 34, which describes the UN Human Rights Committee’s interpretation of Article 19, parties to the ICCPR must protect Internet-based forums and “take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.”
The planned censorship list put forth by the Tunisian court contravenes both the letter of the treaty and its interpretation by the Committee. General Comment 34 reads Article 19 to include all information including “political discourse, commentary on one’s own or public affairs,” even if it is “deeply offensive.” The military is a legitimate arm of the government and often a political force itself, and the order to censor anti-military statements on Facebook seems to fall squarely within the definition of permissible political discourse under Article 19. Additionally, the censorship of pornographic materials may contravene the prohibition against censoring even “deeply offensive” material, although in practice more conservative interpretations may find certain pornography to be a form of gender discrimination and therefore subject to restriction to prevent public morals. Even under such a reading, the General Comment makes clear that removing all individual choice and giving the government total control over the regulation of pornography would constitute “unfettered discretion” in violation of Article 19.
The classified list of censored materials proposed under the court order is a troubling and immeasurable step backwards for the free society that the new government endeavors to build. Tunisia experienced its first free election on October 23, 2011, and the inability for its citizens to discuss future government formations and political issues using the Internet as a forum runs counter to both the goal of building a new democratically engaged nation and Tunisia’s treaty obligations under the ICCPR not to confer “unfettered discretion” to limit freedoms using national laws.
