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Tunisian courts rule in favor of free speech

Thursday 8 March 2012, by siawi3

- 24 February 2012,
- Source: https://www.accessnow.org/policy-ac...

Freedom of speech advocates in Tunisia would be forgiven for a bit of cautious celebration this week, following decisions by Tunisian courts in two pending cases related to the distribution of indent material. Censorship of the press and Internet was a tool of oppression under former President Zine El Abidine Ben Ali and, post-revolution, these media continue to come under attack by groups seeking to regulate social values. This week’s decisions in defense of individual rights come at a critical time, highlighting the issue just as Tunisia’s newly-formed Constituent Assembly begins drafting the country’s new constitution.

On Thursday morning, Nasreddine Ben Saida, editor of newspaper Etounsia, was released on bail pending trial for ‘violating moral decency’ after the paper republished images of Real Madrid football star Sami Khedira and his semi-nude girlfriend. Ben Saida, who has been detained since 15 February, plead not guilty, citing the ‘artistic’ quality of the photos. His trial is scheduled for 8 March.

And Wednesday afternoon, in a long-awaited verdict, the Cour de Cassation, Tunisia’s supreme court, canceled an appeals court decision ordering the Tunisian Internet Agency (ATI) to filter pornographic content. Although the director of ATI, Dr. Moez Chakchouk, is an outspoken opponent of censorship, ATI fought the case on technical grounds, arguing the organization did not have the resources to fulfill the order without serious disruption to the network.

The court has not yet released the details of their decision, however lawyers for ATI are pleased with the outcome. According to those close to the case, the reversal is likely based on court assessment that there is insufficient relevant legal code or judicial precedent to decide the merits of the case. The case was returned to the lower court for reconsideration and will be retried in the next few months.

The ATI is an unlikely defender of Tunisia’s freedoms. Prior to the revolution, the ATI was among the most widely reviled institutions in Tunisia, symbolically located in the former private home of Ben Ali. The ATI was known as the primary censor and surveiller of the web, blocking hundreds of websites and infiltrating user accounts. The filtration was so widespread that Internet users personified the apparatus, nicknaming it Ammar404, after the misleading error message encountered by those trying to access a banned site.

Last January, with news of public demonstrations being spread on social media, the regime cracked down, hacking into activist Facebook accounts and attempting to steal user log-in information. Then, amid strengthening protests, the president issued an abrupt reversal, ordering an end to ATI’s regime of censorship. The citizens were unappeased, and Ben Ali fled the country one day later on 14 January 2011.

In the post-revolution reshuffling of the government, the ATI is under new leadership, and seeks to define a new, open vision of Internet in Tunisia. Dr. Moez Chakchouk, a youthful former advisor to the Ministry of Telecommunications, has staked his directorship on net neutrality and an uncensored web. Under Ben Ali, the agency had received large discounts on surveillance technology in exchange for acting as an ‘R&D lab for censorship’ for Western companies. ATI cancelled these contracts and set about dismantling the technical and personnel resources associated with filtering. Chakchouk’s strategy appears to hinge on strategic disarmament, rendering the agency incapable of meeting demands for censorship without direct government order.

The first test of this approach came in May, only months after the revolution, when the Permanent Military Tribunal of Tunisia ordered the blocking of five Facebook pages accused of insulting the military and promoting violence. ATI complied, but ceased blocking a short time later, pointing to capacity deficits: the revolution had prompted a massive 33% increase in Internet traffic, while ATI itself had dramatically scaled down resources.

That same month, a group of lawyers put in motion the events leading to Wednesday’s verdict. Citing negative ‘psychological, physiological, social, and educational effects’ on children and Muslim society, they secured a court order directing ATI to resume filtration of pornographic sites. The agency refused, citing growth in traffic, lack of capacity, and cost: an estimated 3.6 million Tunisian dinars, or $2 million US dollars, in 2010 alone. The agency petitioned the court of appeals, but lost.

As a final effort, ATI brought the case to the highest court, generating an international campaign in support of their petition. One week ago, the court announced a delayed decision, prompting speculation of a favorable outcome for ATI — a view was redeemed by Wednesday’s verdict.

These cases are about more than just smut and censorship. This week, elected representatives began the process of drafting a new constitution, and one of the many issues they will consider will include the language of rights to expression and assembly. As Tunisians struggle with other challenges, including security sector reform and rising unemployment, these court decisions are reminders of the fundamental nature of individual rights, and critical guideposts to the drafting committees.