Access to Public Information, Content Regulation / Censorship, Licensing / Media Regulation
Esquivel v. Costa Rican Electricity Institute
Closed Expands Expression
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The Court of Cessation of Tunisia overruled the decision to force the Tunisian Internet Agency in blocking access to pornographic websites.
Tunisia’s internet has been relatively censorship-free since the January 2011 ouster of former President Zine El Abidine Ben Ali, whose regime exercised heavy censorship over all forms of communications, including access to online information and ideas. Shortly thereafter, under the guise of defending public morality, the Plaintiffs in this case sought to restore censorship of certain internet communications.
Headed by Mon’em Al-Turki, the Plaintiffs were a group of Tunisian conservative lawyers who sought to restrict access to internet pornography by suing the government agency in charge of regulating the internet, the Tunisian Internet Agency (ATI).
The case was first argued before a court of first instance, which ordered ATI to ban pornography from Tunisian internet. ATI subsequently appealed the decision, citing technical concerns. Moez Shakshouk, the head of ATI, contended that blocking all pornographic websites would result in other undesirable outcomes, such as slowing down the internet speed in addition to lowering the quality of other internet services. 
The Tunisian Court of Appeals affirmed the lower court’s decision to block pornographic websites. In response, ATI described the blockage as “a step backwards.”  It said that under the ousted regime, “the agency was an instrument of political control and censorship. Today we are fighting for the neutrality of the Internet, but they want to put the old cloak back on us.” 
Subsequently, ATI appealed the decision to the Court of Cassation of Tunisia.
The Court of Cassation overruled the decision to the ban internet access to pornographic websites. According to Tunisian news reports, the Plaintiffs contended that censorship is not a foreign concept to Tunisian regulators and ATI had previously exercised significant control over internet communications, including filtering websites critical of the Tunisian military establishment. According to them, pornography undermines the moral and social fabric of the society and it is the government’s duty to protect Tunisian youth and children from the negative effects of pornography.
The Plaintiffs also pointed out that the Egyptian judiciary recently ordered the Ministry of Communications to ban pornographic websites in Egypt. They argued that Tunisian experience, government, and population are similar to Egypt’s and therefore, the Court must follow the Egyptian precedent.
In response, ATI argued that blocking access to pornographic websites is a repressive measure against the Tunisian public. Moreover, the agency emphasized that it does not have the technical capacity to block pornographic contents throughout the country. The agency estimated that it might cost an additional 1.5 Million Euro to comply with the ruling if affirmed. It argued that it lacked both the financial and technical means to maintain the proposed filtering system.
The Court rejected the Plaintiffs’ arguments and reversed the Court of Appeal’s ruling.
 Al Arabia News, Tunisia Court Throws Out Porn Websites Ban, (Feb. 22, 2012), http://english.alarabiya.net/articles/2012/02/22/196330.html
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court of Cessation’s decision to overrule the blockage of internet access to pornographic websites expands the right to freedom of expression, particularly the right to access information.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision of the Tunisian Court of Cassation in this case was welcomed by many rights groups and international observers. The Court is the highest court of Tunisia and its decisions are binding on all courts and administrative agencies. The rights group cheered invalidating the ban. For example, later in 2012, the same year of the ruling, the Open Net Initiative, a research group, issued a report finding no evidence of internet censorship in Tunisia.
Others have criticized the Court for merely reversing the ruling, without issuing any authoritative pronouncements on internet freedom in Tunisia. Moreover, despite the arguably progressive ruling, there are to date conflicting reports on the level of internet freedom that Tunisians enjoy.
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