Article 86 is still being used
Freedom of expression in Tunisia is facing another test. In July and August, courts have continued to hand down prison sentences against people for expressing critical views online. Among the latest cases are those of a journalist and an activist, both prosecuted under Article 86 of the Telecommunications Code.
A journalist is sentenced to one year in prison on appeal, while an activist is sentenced to 18 months in prison by a court of first instance. Although the two cases are different in several aspects, they both show how Article 86 continues to be used by the Tunisian judiciary to criminalise critical expression.
On 8 July 2026, a Sfax Court of Appeal sentenced journalist and political commentator Haythem El Mekki to one year in prison under Article 86 for social media posts about his reporting on overcrowding at the morgue of Habib Bourguiba University Hospital in Sfax. The case followed a complaint filed by the hospital in April 2023. El Mekki had initially faced charges under Article 24 of Decree-Law 54 of 2022. According to El Mekki, he left Tunisia following his conviction and one-year prison sentence. On 31 August 2026, activist Seifeddine Arafoui was sentenced to 18 months in prison under the same provision. He was prosecuted over social media content and for raising a slogan critical of President Kais Saied. On 21 August, security forces took Arafoui from his home for questioning at the Gorjeni Anti-Criminality Brigade, one day from participating in a protest called for by the opposition initiative Nafas in the capital Tunis.
These are not historical examples. They are happening now and have dire consequences on the lives of people.
For years, human rights organisations have warned about the use of Article 86 to punish speech. Yet the provision continues to be used nowadays against activists, human rights defenders and ordinary Tunisians who express critical views online, as well as against journalists. When alleged conduct constitutes a press offence committed in the exercise of journalism, Decree-Law 115 of 2011 provides the specific legal framework and safeguards for journalists, rather than broader and more punitive provisions such as Article 86 or Decree Law 54. HuMENA has previously raised concerns about the use of these provisions to prosecute journalists in the context of their work.
The continued use of Article 86 reflects an on-going wide deterioration in Tunisia’s civic space. As authorities have over the past years become increasingly intolerant of dissenting voices, journalists, activists and ordinary social media users face growing risks for criticising public officials, government policies or the president.
Article 86 is part of Tunisia’s Telecommunications Code, adopted in 2001 under former President Zine El Abidine Ben Ali. At the time, authorities tightly controlled internet use and online expression, including by blocking political and human rights websites, monitoring online activity and prosecuting critics. Article 86 was originally used to punish harassment by telephone, but authorities later expanded its use to prosecute people over speech and expression, including criticism of public officials and political figures.
Article 86 has found renewed use in the current climate of repression and has become a redundant instrument for prosecuting critical expression, including speech shared online. The recent cases documented by HuMENA show how this provision is being used in practice. They also raise a broader concern: as Tunisia’s civic space continues to gradually shrink, laws such as Article 86 are increasingly being used to turn criticism into a criminal offence.
While article 86 itself does not refer specifically to political or online criticism, It criminalises “intentionally harming others or disturbing their peace through public telecommunications networks”, with a prison sentence of one to two years and a fine of 100 to 1,000 Tunisian dinars. However, the provision does not clearly define what amounts to harming or disturbing others, raising concerns about legal certainty and foreseeability and allowing for broad interpretation against speech, including online criticism.
The issue with Article 86 is therefore not new. Human rights organisations have raised concerns about its use to punish peaceful expression for years. Human Rights Watch documented the use of Article 86 against people for their social media posts as early as 2017. In 2019, it reported that at least six Tunisians had been imprisoned since 2017 for social media posts about politics and other issues of public interest, and called for Article 86 to be amended to prevent its use against peaceful speech.
Two cases, broader concerns: What the recent cases tell us
The recent cases documented by HuMENA show that Article 86 is not only a provision that remains on the shelves but rather represents a recurrent tool used to prosecute people for what they express online.
The cases involve different people and different forms of expression. But they have one thing in common: two individuals who had been brought before the judiciary for what they said, not for acts of violence or for committing other conventional crimes.
El Mekki was prosecuted over social media posts about his reporting on the morgue at Habib Bourguiba University Hospital in Sfax exceeding its capacity in 2023. The hospital filed a complaint against him in April 2023. On 12 January 2024, he received a formal summons, and on 15 January he was questioned as a suspect by the Judicial Investigation Brigade of the National Guard district in Sfax.
El Mekki was initially prosecuted under Article 24 of Decree-Law 54 of 2022. In December 2024, the Court of First Instance dismissed the case, but the Public Prosecutor appealed. The Court of Appeal later overturned the ruling and convicted El Mekki under Article 86 of the Telecommunications Code instead. The shift is significant: after the Decree-Law 54 charge failed at first instance, the same conduct was ultimately punished under a different, older provision with broader wording. This raises concerns about how Article 86 can be used as an alternative legal basis to prosecute speech when other charges do not succeed.
According to information El Mekki gave directly to HuMENA, the appeal decision was issued on 8 July 2026. He was sentenced to one year in prison for insulting others through public telecommunications networks. He told HuMENA that he had not expected the sentence, especially that he had been acquitted by the first-instance court. He has challenged the decision and the case is now before the Court of Cassation. The case illustrates how criticism or reporting on a matter of public interest can move from the public sphere into the criminal justice system. It also shows how Article 86 can enter a case even after another set of charges has failed. El Mekki’s recent conviction is not an isolated episode of pressure linked to his work. He had previously been summoned in connection with his journalism and political commentary, including in May 2023 and in March 2025.
A similar pattern can be seen in the case of political activist Seifeddine Arafoui.
On 31 August 2026, a Tunis court sentenced Arafoui to 18 months in prison under Article 86. He was prosecuted for allegedly insulting others through social media and for raising, during a protest, a slogan critical of President Kais Saied.
According to the Nafas movement, security agents went to Arafoui’s home on 21 August, a day after he took part in a Nafas protest, and took him to the El Gorjani anti-crime brigade for questioning.
HuMENA spoke directly with one of Arafoui’s lawyers, who confirmed that he was prosecuted under Article 86. Following a police investigation, the public prosecutor ordered his detention for 48 hours, which was later extended by an additional 24 hours. His first court hearing, scheduled for 27 August, was postponed to 31 August. The court then sentenced him to 18 months in prison. Arfaoui is currently in Moranguia prison serving his sentence.
The two cases involve different forms of expression and different circumstances. They also show how the provision can punish different forms of criticism as well as differing groups of people. In El Mekki’s case, Article 86 was used in relation to his reporting and critical social media posts. In the case of Seifeddine Arafoui, it was after he posted a video to one of his social media accounts showing his participation in a protest and raising a slogan considered critical of the president.
The path is also important. A complaint or police investigation can lead to questioning, prosecution and detention, and ultimately to imprisonment. Article 86 is not simply a legal provision that creates a risk of prosecution. It can translate to individuals losing their liberty because of what they say.
Freedom of expression is protected by Tunisian and international law
Tunisia’s 2022 Constitution protects freedom of expression. Article 37 guarantees freedom of opinion, thought, expression, media and publication, and prohibits prior censorship. Article 38 also guarantees the right to information and access to information. Under Article 55, any restriction on these rights must be provided by law and serve a legitimate purpose, such as protecting the rights of others, public security, national defence, public health or public morals. Restrictions must be necessary, justified and proportionate, and must not undermine the essence of the right. This means that the existence of Article 86 does not, by itself, make every use of the provision compatible with the Constitution.
Tunisia is also bound by international law protecting freedom of expression. Article 19 of the ICCPR protects the right to hold opinions and to seek, receive and share information and ideas through any media. Tunisia is also a party to the African Charter on Human and Peoples’ Rights, whose Article 9 protects the right to receive information and to express and share opinions. Under Article 74 of Tunisia’s 2022 Constitution, treaties ratified by the President and approved by the Assembly of People’s Representatives have greater legal force than ordinary laws, although they remain below the Constitution. This means that Article 86 must be applied in line with Tunisia’s international human rights obligations.
These protections also apply to online expression. Social media continues to represent an important space for Tunisians to discuss politics, public services and government policies. Sharing an opinion online does not remove it from the protection of freedom of expression.
Furthermore, Decree-Law 115 of 2011 on freedom of the press, printing and publishing also protects freedom of expression. Its transitional provisions replaced the offence in Article 86 with similar offences under Articles 55 and 57, but with a lighter penalty: a fine instead of imprisonment. The Manouba Court of First Instance confirmed this in a 14 May 2020 judgment involving bloggers. Yet Article 86 continues to be used to prosecute people for their speech. This raises questions about why Article 86 is still being used when Decree-Law 115 provides a different and less severe legal framework for expression.
The key issue in these recent Article 86 cases is whether its use is compatible with Tunisia’s constitutional and international protections for freedom of expression.
These cases also raise wider concerns about the shrinking space for free expression in Tunisia. Social media remains one of the few spaces where Tunisians can openly express their views, raise concerns and criticise the performance of public authorities. This is particularly important after a difficult summer, when repeated interruptions to basic services such as water and electricity led to growing public frustration and concern. People should be able to speak about these issues without fearing criminal prosecution.
Fifteen years after the 2011 revolution, freedom of expression remains one of the most important gains made by Tunisians. The continued use of broad provisions such as Article 86 and Decree-Law 54 to prosecute speech puts that gain under pressure on a daily basis. Rather than restricting peaceful criticism, the authorities should ensure that people can express their views, including criticism of those in power, without fear of imprisonment. Article 86 should therefore be reviewed and amended to ensure that its vague wording cannot be used to criminalise protected speech. Anyone imprisoned solely for peacefully exercising their right to freedom of expression should be released, and related prosecutions should be dropped. These steps are necessary to bring the application of Article 86 in line with Tunisia’s constitutional and international human rights obligations.
Criticism should not be treated as a crime. No one should be imprisoned solely for expressing a protected opinion, nor should people feel forced to censor themselves out of fear of prosecution.
