Case Summary and Outcome

The Manouba Court of First Instance dismissed defamation charges brought against three defendants who had attacked police on social media after being detained for violating a curfew. The three defendants were stopped by a police patrol on April 25, 2020 and sbsequently took to social media to attack the police, accusing one of them of bribery. The Public Prosecutor in Tunisia pressed charges of defamation against the defendants under Article 128 of the Penal Code and Article 86 of the Telecommunications Code for insulting and accusing a public employee of bribery without proof, using the internet. The Court dismissed the charges due to the invalidity of the prosecution process.

Facts

The three defendants were stopped by police during the curfew hours and subsequently used their social media accounts to insult and defame the police, accusing one of the police officers of bribery.

On questioning, the first defendant denied the accusations, emphasising that his posts neither targeted the police nor incited people against them, but only criticized suspicious activities in general. The second defendant admitted that he meant to criticize specific police officers, but he removed his post after calming down. The third defendant stated that his post was a reply to the post of the second defendant.

On May 07, 2020, the defendants were accused of defamation and were charged by the Public Prosecutor with violating Article 128 of the Penal Code and Article 86 of the Telecommunications Code.

• Article 86 of the Telecommunications Code stipulates that “Anyone who intends to offend or disturb others using via telecommunications networks shall be sentenced to imprisonment for a period between one year and two years, and a fine from one hundred and up to one thousand dinars.”
• Article 128 of the penal code states that “Anyone who attributes illegal acts to a public official related to his job without proof, through a public statement, the press or other communication channels shall be punished by two years of imprisonment and a fine of one hundred and twenty dinars.”

The defendants moved to dismiss these accusations, arguing that due process was not properly followed and that their right to privacy was violated. They further argued that their speech was protected under the freedom of expression provision of the Tunisian Constitution.

The Manouba Court of First Instance went through the accusations, noting that there were irregularities with regard to the prosecution process. The Court eventually dismissed the charges.

Decision Overview

Judge Anisa Al-Trishili, Judge Rima Bin Maatouk and Judge Hanane Omar comprised and delivered the ruling of the Court.  The main issue was whether the defendants’ acts amounted to online defamation under Article 128 of the Penal Code and Article 86 of the Telecommunications Code.

The prosecution argued that the defendants had violated Article 128 of the Penal Code and Article 86 of the Telecommunications Code by using the telecommunication network to insult and defame the police, and to accuse one of the officers of bribery without evidence.

The first defendant denied the accusation, arguing that his/her social media post neither targeted the police officers nor incited violence against them, but was merely aimed at criticising and exposing suspicious activities generally. The second defendant admitted that the post was about two specific police officers; however, he/she deleted the post after cooling down. The third defendant claimed that his/her social media comment was only a reply to the second defendant’s post, which was directed at one of the police officers, who had detained the second defendant’s brother.

First, the Court noted that the 2011 Decree No.115, which regulates freedom of the press, has legislative value according to Chapters 1, 4 and 5 of the 2011 Decree No. 14, and therefore supersedes both the Penal Code and the Telecommunications Code according to Article 79 of the Decree which abrogated all previous provisions that contradicted it, including those crimes related to the expression of opinions and ideas contained in the Penal and Telecommunications Codes.  Therefore, the Court, said that there was no legal basis to charge the defendants for online defamation under the codes.  Accordingly, the Court held that charging the defendants under the Penal and Telecommunications Codes undermined the legislative value of the Decree and lead to the invalidation of the prosecution proceedings.

The Court then explained that Article 55 of the Decree states that personal and direct harm is an essential element to prove defamation, and Article 69 states that a defamation case has to be filed by the person defamed. The Court said that since the case had been filed by the prosecution, not the defamed officer, and that the prosecution failed to prove that this officer had suffered any harm, the proceedings should be dismissed.

Finally, the Court reiterated that the main reason behind the issuance of the 2011 Decree was to expand freedom of expression, eliminate criminal sanctions and to emphasise the obligation to respect the international human rights conventions ratified by Tunisia and enshrined in the Constitution, such as the International Covenant on Civil and Political Rights. The Court also referred to the European Convention on Human Rights, the African Charter on Human and Peoples’ Rights and the American Convention on Human Rights, asserting that the international community considers freedom of expression as the essential foundation of a democratic society and the cornerstone of all other rights and freedoms. The Court emphasized that although restrictions may be imposed on freedom of expression, these restrictions remain as an exception that should be narrowly construed.

Based on the foregoing factors, the Court found the prosecution process invalid and dismissed the charges.