Case Summary and Outcome

The Court of Cassation of Tunis upheld the acquittal of N.F. for publishing false news threatening public order. On November 23, 2014, the day of the Tunisian presidential elections, N.F. published a post on Facebook alleging potential election fraud, which she warned could lead to bloodshed and an outbreak of violence. After receiving numerous critical replies, she apologized and deleted the post. Based on an official investigation into the matter, she was charged with “publication of false news threatening public order” under article 54 of Decree Law 2011-115 on freedom of the press, printing and publishing. The Court of Cassation found that the Court of Appeal had applied the law correctly to determine that social networks do not constitute electronic media within the meaning of the Decree-Law 2011-115 and that the act of deleting the incriminating post neutralized the required criminal intent for prosecution. The Court confirmed the acquittal of N.F. and rejected the prosecution’s request to overturn the decision of the Court of Appeal.

Facts

On November 23, 2014, the day of the Tunisian presidential elections, N.F., a Tunisian woman, published a post on her Facebook page alleging potential election fraud, and warning that if the late President of the Republic, then-candidate (perceived as a relic of the former Tunisian consecutive regimes) won, there could be bloodshed and an outbreak of violence after the vote and that she prayed for his opponent to win. [p. 2]

Soon after, N.F. received several negative comments containing insults and criticism in reaction to her post, which prompted her to delete it and publish an apology explaining that her initial post was misunderstood.

The Prosecutor of the Republic at the Criminal Chamber Court of First Instance ordered an investigation into N.F.’s post on November 26, 2014. The investigation was carried out by officers of the Criminal Cases Division of Tunis. They produced report No. 2323 dated November 26, 2014, which documented evidence to charge N.F. with “publication of false news threatening public order” under Article 54 of Decree Law 2011-115 of November 2, 2011 on freedom of the press, printing and publishing.

Article 54 of Decree-Law 2011-115 reads: “It is punishable by a fine ranging between 2000 to 5000 TND, whoever intentionally, through the means mentioned in Article 50 of this Decree-Law, publishes false news threatening public order.”

Article 50 reads: “Accomplices will be punished for acts qualified as an offense within the meaning of articles 51 and pursuant to this decree-law, those who directly incite one or more people to commit the aforementioned, when followed by an act, either by speech, words or threats in public places, or by means of printings, photos, sculptures, signs or any other written or photographic form exposed for sale or for public view in public places or public meetings, either by means of posters and announcements exposed to public view or by any other means of audiovisual or electronic information. The action is punishable in accordance with the provisions of article 59 of the penal code.”

The Criminal Chamber at the Court of First Instance of Tunis ruled in favor of N.F. on November 27, which the prosecution appealed. The Court of Appeal of Tunis upheld the first instance decision on September 28, 2016. The General Prosecutor appealed to the Court of Cassation arguing that the appellate decision violated the law and was lacking sufficient argumentation.

Decision Overview

As a court of Law, the Court of Cassation primarily oversees the conformity to and the correct interpretation and application of the law, as well as claims relating to abuse of power, incompetence of the court or the observation of mandatory procedures.

Therefore, the Court of Cassation considered that the main legal issue for determination was in this case, “limited to the challenge of the lower court’s appreciation which was correctly reasoned and did not violate the law” [p.4].

The Prosecution sought to overturn the Appellate Court’s decision of acquittal of the Defendant on the grounds that the Court erred by violating the Law twice:

First, the Prosecution claimed the Appellate court erred in considering that social networks are not electronic media, since the Decree-Law 2011-115 was broad and did not specifically exclude social networks.  Second, the Court of Appeal erred when it determined that the act of deleting the incriminating publication proved a lack of criminal intent. The Prosecution argued that the Defendant deleted the offending post only after receiving criticism from other online users, and therefore the deletion was immaterial to the existence of the initial criminal intent.

The Court of Cassation found that the Appellate decision was properly reasoned and found no grounds for either of the alleged violations of law. The Court argued that the scope of its judicial review was limited to circumstances where there were questions relating to the conformity and/or the correct application of the law, not on the lower court’s sovereign discretion as long as the decision was correctly reasoned. On both arguments made by the Prosecution, the Court of Cassation determined the lower court had properly applied established legal principles at its own discretion and therefore no further analysis was required.

Substantively, it thereby upheld the opinion of the Appellate and First Instance courts on two important questions. First, regarding the question of the public nature of personal social media accounts, the Court of Cassation effectively confirmed that social media platforms are not “electronic media” as defined by the Decree-Law 2011-115 on the ground that publications on [what appears to be] personal accounts are viewable to limited numbers of people related to each other and not intended [i.e. the personal accounts] for large dissemination of information to the public.

Second, the Court of Cassation emphasized that the Court of Appeal has the authority to consider the merits of a case without the supervision of the Court of Cassation which is a court of Law, and thus upheld its finding that the deletion of the incriminating post on Facebook by the Defendant meant that the criminal intent ceased to exist. By endorsing the Appellate Court’s interpretation of the laws at issue, the Court of Cassation established two important guidelines: 1) social networks are not electronic media in the context of the Decree-Law 115 if publications are shared among a limited number of interconnected individuals and not intended for large public dissemination, and 2) that the removal of a post, removes the potential for criminal intent.

The Court denied the Prosecution’s recourse and affirmed the decision of the Court of Appeal, thus acquitting the Defendant, N.F.