Data protection in Tunisia: a legal illusion?

 
After having constitutionalized the right to data protection in 2002, adopted a legal act detailing its scope and set up a national commission in charge of its enforcement in 2004, Tunisia appears as if it had been guaranteeing for more than a decade a high standard of protection to its citizens. But since the right to data protection was incorporated in the Tunisian constitution, it is striking to observe that no sanction has ever been imposed for an infraction of the law on data protection.

The Ministry of Justice is expected to propose by the end of 2016 its proposal of a review of the framework for the protection of personal data.  In the context of the future legislative debates, understanding the features and limits of the current data protection regime seems therefore of particular relevance.

To do so, we need first to look at the actors and dynamics that allowed this legal framework to emerge in the years 2000s. At first, it seems indeed paradoxical that it is in the era of Ben Ali’s regime that the Constitution first recognized the right to data protection to all Tunisian citizens.

Even though it was adopted in the context of an authoritarian regime, the Tunisian data protection regime remains in place nowadays, even though it was repeatedly deemed incompatible with the newly established principles of the 2014 Tunisian Constitution. This reality generates legitimate concerns on the actual effects of the consecration of the right to data protection in Tunisia.

From the unnoticed introduction of this new right during Ben Ali’s regime…

As strange as it may seem, the protection of personal data has suddenly appeared on the national scene during the review of the Tunisian Constitution in 2002. Amidst a relative indifference, the right to the protection of personal data was added in the article 9 of the Tunisian constitution:

“The inviolability of the home, the confidentiality of correspondence and the protection of personal data shall be guaranteed, save in exceptional cases prescribed by law”.
Article 9 of the 1959 Tunisian Constitution (revised in 2002)
 
As for other dispositions introduced during the 2002 constitutional revision, this new reference to the right to data protection could be explained by the former president’s will to brighten its image in the eyes of its international partners, and particularly on the eve of the World Summit on Information Society organized in Tunis in 2005.
 
The constitutionalization of the right to data protection was followed two years later by the adoption of a legal framework detailing the scope and limitations of this new right. Carried out by the Ministry of Justice, the establishment of this legal framework led to the adoption of the Organic Act n°2004-63 of July 27th, 2004 on the protection of personal data.

This law, at a time the first of its kind in the Maghreb region, established the data protection regime that is still in place in Tunisia, and placed under the supervision of the newly created “National Authority for Protection of Personal Data (INPDP)”. After the adoption of application decrees in 2007 and the designation of its members in 2008, this institution took office quietly in 2009, more than six years after the constitutionalization of his right to data protection.

The consecration of this right in the Tunisian constitution in 2014

Following the fall of Ben Ali’s regime in 2011, the new Tunisian Constitution in 2014 broadened the right to data protection in its article 24. As part of this article, the right to privacy was added to the rights protected by the Constitution, reinforcing indirectly the right to data protection.

The  state  protects  the  right  to  privacy  and  the  inviolability  of  the  home,  and  the confidentiality of correspondence, communications, and personal information.
Article 24 of the 2014 Constitution

More generally, the adoption of the 2014 Tunisian Constitution constitutes a fundamental legal shift, particularly in light of its article 49 that imposes the proportionality of the restrictions exercised on the rights and freedoms guaranteed to all citizens. Despite these significant constitutional changes, the 2004 Organic Act on the protection of personal data instituted during the Ben Ali regime was left intact.

A data protection regime inefficient by design

On many aspects, the legal framework regulating the protection of personal data in Tunisia shares the same weaknesses of Ben Ali’s regime that eventually led to its fall. By paying lip service to human rights rather than properly protecting and enforcing the rights and freedoms of the Tunisian citizens, the 2004 Organic Act on the protection of personal data echoes the numerous public declarations of the Tunisian president with regard to human rights.

At first sight, the 2004 Organic Act seems to set a high standard of protection for Tunisian citizens. Indeed, the Tunisian data protection regime is based on the principles of the lawfulness of the processing and accountability. It gives rights to the individuals who have their data being processed and obligations to the organizations or individuals in charge of the processing.  As a general rule, personal data processing must be either declared by the processors or previously authorized by the INPDP.

But the Tunisian data protection regime is significantly weakened by the numerous exemptions it gives to certain data processors. Indeed, organizations with “public personality” (such as police stations, tribunals, and universities) stand out of the scope of the legislation and are not bound by the obligations that would normally apply to personal data processors in Tunisia. Public organizations do not have to declare data processing and therefore deprive individuals of the possibility to exercise their rights to access, rectification, and opposition, as well as to express their informed consent. Employers also benefit from a derogatory regime with regard to the processing of the personal data of their employees.

The great discrepancy between the law text and its actual application is also a major hurdle preventing Tunisian citizens to effectively exercise their right to data protection. The National Authority for Protection of Personal Data (INPDP) is the main institution in charge of the control and enforcement of the legal framework on data protection. The recent statistics published by the INPDP on its activities during the period 2009-2015 clearly indicate how rarely the law was respected by data processors until recently.
 
Source: INPDP, 2016
 
Until 2015, rare were the data processors (such as private companies) engaging with the INPDP in order to declare their own processing of personal data in accordance with the law. As a result, the application of the 2004 Organic Act has been for years more exceptional than normal.

This discrepancy can be explained firstly by the very limited resources at the disposal of the INPDP to ensure a proper enforcement of the rules. Furthermore, the composition of the INPDP may also have undermined its efficiency. For instance, its two first presidents from 2009 to 2014 were former magistrates. Their professional background may have prevented them to act proactively in conducting communication campaigns and make use of public “name-and-shame” strategies. In line with the normal working practices of a jurisdiction, they only considered cases when seized by a third party.

This is with these habits that Chawki Gaddes, the new president of INPDP since 2015, has been trying to fight against since his nomination. The recent increase of cases examined by the INPDP in 2015 tends to indicate that his efforts have already been rewarded. According to him, the most important task on INPDP’s agenda is now the revision of the 2004 Organic Act, in order to ensure the compatibility of the data protection regime with the new Tunisian Constitution and international standards.

Towards a reform of the Tunisian data protection regime

The reasoning behind the future revision of the data protection regime is twofold. First, it appears increasingly needed to review laws adopted in the context of Ben Ali’s authoritarian regime, in order to avoid discrepancies with the new Tunisian constitution. For instance, State’s exemptions to general obligations with regard to personal data processing cannot be seen compatible with the essence of the article 49 for instance, and should, therefore, be quickly reviewed.

Secondly, at the international level, it must be noted that Tunisia is currently not considered by the European Union as a country providing an adequate level of protection by reason of its domestic law or of the international commitments it has entered into. But in 2015, Tunisia and the European Union have launched the negotiations for a Deep and Comprehensive Free Trade Area, encompassing not only trade in goods but also services and a range of regulatory areas. The compatibility of Tunisian and European laws in certain sectors has thus progressively become a priority for the Tunisian government.

The alignment of Tunisian data protection regime with European standards is becoming more and more needed. It is in light of this reality that one can understand the request of Tunisia to accede the Convention 108 of the Council of Europe in 2015. The Convention 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data is still today the only binding international treaty in this field.

Non-compliance with international standards on data protection and privacy could affect the long-term Tunisian businesses. The stark increase in data transfers between Tunisia and Europe, fuelled by the rapid development of the IT off-shoring industry in Tunisia is, therefore, a strong incentive in favor of the review of the current Tunisian data protection regime.

In contrary to the General data protection reform in the European Union, the future revision of the Tunisian data protection regime has not yet generated a strong interest from the private sector and civil society organizations. Until now, the level of engagement between the Tunisian government and all relevant stakeholders has been actually very low on these issues. But it is only by engaging them in this process, and most important of all, informing them about what is really at stake, that the Tunisian government will prevent the new data protection regime to become a new legal empty shell.

 
Clément Perarnaud Research fellow – Center for Internet and Human Rights (Berlin – www.cihr.eu)