Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
Closed Contracts Expression
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The Court of Appeal of Monastir in Tunisia upheld the decision of the Court of First Instance, Mahdia, sentencing an individual to a total of 7 years and 6 months in jail and a fine of 1200 Tunisian dinars (approximately US$440 in 2020) for publishing images on Facebook which denigrated Islam. After the individual had published images depicting Prophet Mohamed as a pedophile and as a pig eating rats and had republished a pamphlet critical of Islam authored by another individual, he was arrested and charged with three offences related to threats to public morality. The Court rejected the individual’s argument that international treaties protected this exercise of his right to freedom of expression and held that the right does not extend to expression that offends public morals and religious principles.
On March 5, 2012, the office of the Attorney General in Mahdia, Tunisia learnt of pictures published on social media by an individual, Jabeur Mejri, that were offensive to Tunisian citizens’ feelings and which denigrated the character of Prophet Mohamed. The images depicted Prophet Mohamed molesting a young girl dubbed “Aisha” and caricatured the Prophet as a pig eating rats. The Attorney General authorized an investigation and the judicial police arrested and interrogated Mejri. The police investigations revealed that Mejri had shared images and a pamphlet prepared by a second individual, Ghazi Béji, titled “The illusion of Islam” online. Mejri’s laptop was seized and a CD containing the pamphlet and the pictures which had been published on Mejri’s Facebook page was later used as evidence.
During a police interrogation, Mejri confessed that he did publish the pictures, and stated that he was as an atheist who does not recognize Islam and he had previously requested political asylum from the USA and Israel. He confirmed that he did not seek any amnesty and that he did not suffer from any psychological condition and had no history of therapy. However, in a second interrogation, Mejri asked for forgiveness and confirmed publishing the derogatory pictures – including ones containing a sexual innuendo and the pamphlet on his own public Facebook page using his own email – but that Béji had given him the pictures (which were also part of the pamphlet). In this interrogation, Mejri added that Béji encouraged and incited him to share the pictures and contents of the pamphlet in PDF format which were on Béji’s website, and Mejri had referenced the website on his Facebook page through hyperlinks. Mejri had stated that he acted under Béji’s influence and that he comes from a religious and conservative family. After the interrogations, Mejri was informed that he was being questioned in relation to his actions that disparage religious beliefs and disrupt public order and contain sexual innuendos contrary to good morals and that he was not being questioned about his own personal beliefs.
Mejri was charged with dissemination and publication of texts threatening public order (under article 121 (third) of the Criminal Code), with disturbing the peace of mind of third parties by means of public telecommunication networks (under article 86 of the Telecommunications Code) and with violating good morals (under article 226 (second) of the Criminal Code).
Article 121 (third) of the Criminal Code states: “The distribution, sale, display to the public eye and the possession for the purpose of distribution, sale, exhibition for the purpose of propaganda of pamphlets, bulletins and notes, whether of foreign origin or not, likely to harm public order or good morals, is prohibited. Any violation of the prohibition enacted by the preceding paragraph may result, in addition to immediate seizure, in imprisonment of 6 months to 5 years and a fine of 120 to 1,200 dinars (approximately US$44 to US$440 in 2020)”
Article 86 of the Telecommunications Code states: “Anyone who knowingly harms third parties or disturbs their peace of mind through public telecommunications networks is punished by imprisonment of 1 to 2 years and a fine of 100 to one 1000 dinars (approximately US$130 to US$360 in 2020).”
Article 226 (second) of the Criminal Code reads: “Anyone who publicly undermines good morals or public morals by gesture or speech or intentionally bothers others in a way that offends decency is punished by 6 months’ imprisonment and a fine of 1000 dinars (approximately US$360 in 2020). Anyone who publicly draws attention to an opportunity to commit debauchery, by writing, recording, audio or visual, electronic or optical messages, is liable to the same penalties provided for in the previous paragraph.”
Mejri was convicted by the Court of First Instance of Mahdia on all three charges and was sentenced to 5 years in jail and a 1200TND fine (approximately US$440 in 2020) for publication of texts threatening public order, 2 years in jail for harming third parties or disturbing their peace of mind through public telecommunication, and 6 months in jail for undermining good morals.
Mejri appealed the decision to the Court of Appeal of Monastri.
The central issue for the Court of Appeal to determine was whether Mejri was guilty of the three offences with which he had been charged.
Mejri argued that the materials published were a form of speech protected by the right to freedom of expression guaranteed by the Universal Declaration of Human Rights (UDHR) to which Tunisia is a party, and that his freedom of belief was also protected by the UDHR. He also argued that the Tunisian decree-law 2011-116 of November 2, 2011 on freedom of audiovisual communication guarantees his freedom of opinion and expression. Mejri submitted that article 5 of this decree-law implicitly amended article 121 of the Criminal Code. Article 5 states: “The exercise of the rights and freedoms mentioned in articles 3 and 4 of the decree-law herein is done on the basis of the following principles: the respect of international conventions and pacts relating to human rights and public freedoms; the freedom of expression; equality; pluralism of expression of the ideas and opinions; and objectivity and transparency. The application of these principles is subject to the rules relating to respect of the rights of others or their reputation and notably: respect for the dignity of the individual and private life; respect for freedom of belief; protection of the child; protection of national security and public order; protection of public health; and encouragement of culture and production in terms of information national communication.”
Although the Tunisian Constitution of 1959 does protect the right to freedom of expression and includes a limitation to each right and freedom contained within it, the Constitution had been suspended by the Constituent Law 2011-6 of December 16th 2011 on the temporary organization of public powers (the Little Constitution) which was in force until the adoption of the new constitution on January 27, 2017. As a result, Mejri relied on international treaties which remained in force in Tunisia.
The Court examined the contents of the pamphlet and held that it attacked Islam by characterizing it as a destructive religion and defamed the Prophet Mohamed by picturing him as sexually depraved and a pedophile. The Court found that the author perpetuated lies and disparaged that which is sacred to Muslims and provocatively dedicated the pamphlet to Israel, the USA and Serbian ex-president Slobodan Milošević . The Court held that this attack against Muslim beliefs and feelings could ignite anger and provoke reactions that could threaten public order.
The Court accepted that Mejri’s right to freedom of belief is protected by the UDHR and article 11 of the Tunisian Constitution but stated that the denigration of Islam goes beyond the protection of freedom of expression. It noted that Tunisian is a Muslim country and that insulting Islam undermines the sacred elements of the faith of Tunisians. The Court held that the Constitution established a legal framework for the exercise of rights and freedoms and rejected Mejri’s argument that his expression was protected: the Court held that Mejri had not respected that framework.
In respect of the charge of undermining good morals, the Court conceded that the law does not define the concept of “good morals”, but it stated that jurisprudence has established that it means a group of moral rules, customs, traditions and religious principles widespread in Tunisian society and which cannot be infringed. The Court held that the publications vilified the Prophet and religious beliefs and morals of people in a way that attacks common decency, and therefore did infringe good morals as intended by article 226 (second) of the Criminal Code.
On the crime of harming third parties or disturbing their peace of mind through public telecommunications networks, the Court noted that the term “third parties” was broad in the law and that it therefore encompassed the individuals and groups who had undoubtedly suffered an attack on their beliefs and creed in this case and that this needed no further explanation. Accordingly, the Court found that the elements of the offence of knowingly harming a third party or disturbing their peace of mind through public telecommunications had been satisfied.
The Court rejected Mejri’s argument that the element of public accessibility required for the crime of “public undermining of good morals” had not been met. Mejri had argued that his Facebook page was protected by a personal password that only he could access. The Court noted that the investigating officer’s report had stated that the website was accessible to the public, that the pamphlet “The illusion of Islam” contained an open invitation from Mejri to discuss the pamphlet and pictures, and that two informants had been able to access the pamphlet and the website easily, otherwise they would not have been able to report it to the authorities.
The Court also rejected Mejri’s argument that article 5 of the decree-law 2011-116 had amended article 121 of the Criminal Code, and stated that there was no explicit or implicit mention of an amendment of article 121 in article 5.
Accordingly, the Court upheld the lower court’s findings and confirmed the convictions on all three charges. The Court also dismissed Mejri’s argument that as all the charges emanated from a single action the only sentence retained against him should be the highest, holding that Mejri had declared in the interrogations that he published the pictures and the pamphlet over a period of time and the act of publication of each picture and of the pamphlet therefore constituted an independent criminal action. The Court therefore confirmed all three sentences.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By refusing to engage with the content of the concepts of “good morals” and “public morals” and relying on past vague interpretations, the Court of Appeal does not provide any clarity or judicial certainty on how these ambiguous concepts should be interpreted. In doing so, it goes against the principle of criminal law interpretation which requires an interpretation to be strict rather than extensive and to lean in favor of the accused. In failing to engage substantively with the offence in the Telecommunications Act, the Court lost the opportunity to provide legal interpretation of a controversial offence which is regularly used against citizens. In addition, by repeatedly referring to the constitutional provisions – which had been suspended – the Court did not accept the international treaties which would have required greater protection of the right to freedom of expression. The 1959 Constitution – and its limitations to the rights and freedoms – has been systematically used to limit collective and individual freedoms.
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Case significance refers to how influential the case is and how its significance changes over time.
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