Results from the first round of Tunisia’s presidential elections, held on September 15, 2019, indicated a decline of support for the traditional political elite, despite their organizational and financial capacity, as well as revealing successful exploitation of media channels by some underdog candidates. Due to this surprising outcome, debate among Tunisians has been focused on what led up to it. Perhaps as a consequence, some relevant events, including troubling developments that took place during the election campaign period, have dropped from the public’s attention. In this article we aim to reverse that trend, specifically to shed light on the serious misuse of Tunisians’ personal data in campaigns to boost certain candidates, and to discuss what steps should follow.
The first phase of the presidential election, in which candidates are obliged to obtain endorsements as stated in the electoral law, saw a clear violation of Tunisians’ right to protection of personal data. This puts in question the validity of these endorsements, and the extent to which the integrity and transparency of the endorsement process can be guaranteed, in light of this violation.
Personal data misused for endorsements ahead of second round of elections
Recently, a large number of citizens have declared that their names appeared on the endorsement lists of certain candidates without having personally offered the endorsement. In other words, it appears that bad actors used the personal data of Tunisian voters, such as their identity card numbers, names, and possibly their signatures, to obtain endorsements without the authorization of the concerned individuals.
The Tunisian body responsible for carrying out the elections, l’Instance Supérieure Indépendante pour les Élections (ISIE), has called on all Tunisian citizens to verify whether their names appear on endorsement lists by entering the following code on their mobile phones: *195*, followed by their ID card number, and then #. If an endorsement is shown to have been placed on a list for a candidate they did not endorse, ISIE noted in a recently published statement, citizens can formally appeal and object. This incident generated a lot of controversy and concern about the misuse of personal data, and thus, civil society organizations expressed concerns about the status of data protection, particularly since similar incidents took place in the Tunisian presidential elections in 2014.
Is there any legal framework that prevents the misuse of data for endorsements?
The legal framework surrounding endorsements is contained in Organic Law No. 2014-16, dated May 26, 2014, relating to elections and referendums, as revised in accordance with Organic Law No. 2017-7, dated February 14, 2017.
Article 41 of the Electoral law stipulates the rules and procedures for presenting a candidacy. Each candidate shall be endorsed by ten MPs, 10,000 citizens from ten different constituencies, or 40 mayors, as a prerequisite for their file to be admitted. The law considers that ISIE the competent authority that “sets the endorsement procedures and verifies the list of endorsement.” Furthermore, the article clarifies that “candidates who appear to have been endorsed by the same voter or by a person who does not qualify as a voter, shown by any means that leave a written trail, shall be notified of this and shall replace the endorsement in question within 48 hours from the date of notification, as failing to do so will lead to the rejection of their candidacy application.”
Individuals whose personal data has been misused, without their explicit consent, have the right to file a complaint to the public prosecutor so that the appropriate measures can be taken. However, since the 2014 elections, a large number of citizens have filed lawsuits and yet no final judgment has been rendered on such cases to date. The main obstacle in this type of case is that it takes time and effort to prove elements and circumstances, in both criminal justice and electoral justice, as the decision of the latter is based on what has been established by the former.
Based on this information, on September 23, 2019, Access Now submitted an access to information request to ISIE asking for an electronic or hard copy of the exact number of cases presented before the commission during the presidential elections of 2019.
ISIE is mandated to take the necessary legal measures in the event of an infringement to the endorsement process. In the case aforementioned, ISIE would have legal grounds to cancel and reject the application of the candidates who have falsified signatures and used citizens’ names and ID card numbers without their knowledge and without their explicit consent. Facebook users in Tunisia have shared publicly that they discovered that their personal data has been used — without their explicit consent — to endorse candidates. Despite their efforts to raise awareness about this issue, ISIE did not take these accounts and complaints into consideration and therefore the endorsements have remained valid for candidates.
What are the safeguards for personal data in the coming elections?
Among the most important issues that can be raised at this stage is legal sanctions to ensure candidates and campaigns are accountable. Below, we provide the three interpretations and assumptions applicable under Tunisian law:
Conclusions and recommendations moving forward
Finally, it is worth noting that the Organic Law on elections does not impose strict and deterring restrictions on candidates who falsify the list of endorsements. The loopholes in the law and absence of guarantees to prevent such incidents in the future, means that unless something changes, we will continue to see endorsements transform from a showing of seriousness, integrity, and transparency in the electoral process to a means of falsification and fraud.
The Tunisian government must prioritize the reform of the data protection law and make the amendments that civil society organizations recommend to guarantee future elections that do not leverage misuse of data and forgery. We also call on ISIE to take serious action if such incidents are confirmed, such as immediate dismissal of the candidate when an accusation of fraud has been proven. Additionally, we call both ISIE and the judicial authority in Tunisia to take rapid measures in such cases