Last modified 27 January 2025

Data Protection in Tunisia

Data protection officers in Tunisia

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Law

Data protection laws in Tunisia

Tunisia has established itself as a regional pioneer in the protection of personal data, initiating pioneering efforts in this field as early as 2002. These initiatives were consolidated by the adoption of law no. 2004-63 of July 27, 2004, which established a legal framework regulating personal data, reinforced by its implementing decrees, in particular:

Decree no. 2007-3003 of November 27, 2007, setting out the operating procedures of the National Authority for Personal Data Protection; and
Decree no. 2007-3004 of November 27, 2007, establishing the conditions and procedures for the declaration and authorization of personal data processing.

This legislative framework was subsequently ratified and strengthened in 2022 by a constitutional consecration of privacy protection. This major step forward elevated this right to a priority among the fundamental freedoms to be guaranteed in the new Tunisian Republic, thus affirming the country's commitment to data protection and privacy as a pillar of human rights.

Tunisia has also modernized its legal arsenal in response to digital challenges. Decree-Law no. 2022-54 of September 13, 2022 introduced strict sanctions against cybercrime, while Decree-Law no. 2023-17 of March 11, 2023 regulated cybersecurity and introduced the notion of “cloud” into Tunisian law for the first time. In particular, the decree imposes mandatory periodic audits on companies carrying out automated data processing.

To accompany these reforms, several ministerial orders published in September 2023 specified the terms of application:

Order of the Minister of Communication Technologies of September 12, 2023, setting out the procedures and mechanisms for classifying organizations subject to a mandatory periodic audit of their information systems;
Order of the Minister of Communication Technologies of September 12, 2023, establishing the technical audit criteria and the methods for following up the recommendations contained in the audit report;
Order of the Minister of Communication Technologies of September 12, 2023, defining the procedures and conditions for granting and withdrawing the “secure” label; and
Order of the Minister of Communication Technologies of September 13, 2023, specifying the procedures and conditions for granting, renewing and withdrawing the “Government Cloud Service Provider (G-cloud)” and “National Cloud Service Provider (N-cloud)” labels.

Additionally, articles 56, 61 and 75 of the Organic Law n°2015-26 of August 7, 2015 on the Fight Against Terrorism and the Prohibition of Money Laundering addresses the subject of personal data and when the use of personal data is permitted.

Tunisia became the 51st Member State of the Council of Europe Convention 108 on November 1, 2017 and its Additional Protocol No.181 on supervisory authorities and transborder data flows.

In March 2018, it introduced a new draft law on the protection of personal data in line with the new European GDPR in Parliament, however the law has not yet been passed.

In Tunisia, there is a whole legal arsenal relating to the processing of personal data.

In addition to the above-mentioned texts, there are also decisions rendered by the Instance such as:

Decision n° 2 of October 6, 2017 on the processing of personal data in the political field;
Decision n° 3 of September 5, 2018 establishing the countries that represent an adequate level of protection of personal data;
Decision n° 4 of September 5, 2018 organizing personal health data;
Decision n° 5 of September 5, 2018 establishing the conditions and procedures for the installation of cameras and video surveillance; and
Decision n°6 of July 2, 2019 concerning control activities carried out by the National Authority for the Protection of Personal Data.

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Definitions

Definitions in Tunisia

Definition of personal data

Article 4 of Act n° 2004-63 of July 27, 2004 defined personal data as all information, regardless of their origin or form, and which directly or indirectly, allows to identify or make identifiable, a natural person, with the exception of information related to public life, or considered as such by law.

Definition of sensitive personal data

Act n° 2004-63 of July 27, 2004 did not give a clear definition of sensitive personal data, but it listed some personal data that the processing of which is either prohibited, or would question the data subject’s prior consent or the national authority’s authorization.

The processing of personal data is prohibited when involving criminal history and proceedings, criminal prosecution, penalties, preventative measures or judicial history.

In addition, the processing of personal data which directly or indirectly concerns the following is also prohibited:

Racial or genetic origins;
Religious beliefs;
Political opinions;
Philosophical or union activism; or
Health and scientific research.

Health data is defined by above-mentioned INPDP Decision No. 4 of September 5, 2018 as follows:

“sensitive personal data, which concerns all information related to the physical, mental or psychological health situation of the natural person concerned, as well as his hereditary or acquired genetic characteristics that may characterize him or her and that may result especially from the analysis of a biopsy or physiotherapy services rendered to him or her and that may reveal such information”.

Authority

National data protection authority in Tunisia

The National Authority for Protection of Personal Data (the Instance) was created by Decree n° 2007-3003 of November 27th, 2007. It Has several prerogatives and exercises several control operations that are organized by the decision n° 6 of the Instance dated July 2, 2019.

Any person may file a complaint with the INPDP regarding the violation of personal data committed by any entity.

The decisions of the Instance can be appealed before the Court of Appeal of Tunis and before the Court of Cassation.

Registration

Registration in Tunisia

Any processing of personal data shall be subject to a prior declaration filed at the headquarters of the National Authority for Protection of Personal Data, or by any other means leaving a written record.

The declaration shall be made by the controller or his legal representative;
The declaration does not exempt third parties from liability;
The conditions and procedures for submitting the declaration shall be laid down by decree;
The Commission may object to the processing of personal data within one month from when the declaration is accepted. (Article 7 of the 2004 Act).

The processing of personal data may be subject to prior authorization by the INDPD if it involves the processing of sensitive personal data, or in the case of transfer of personal data abroad, or if required by law.

The conditions and procedures for declaration and obtaining authorization are regulated by Decree n°. 2007-3004 dated 27 November 2007.

Data protection officers

Data protection officers in Tunisia

Under Tunisian law (Law n° 2004-63 dated July 27, 2004), there is no reference to Data Protection Officers.

Nevertheless, with regard to health data protection, Decision No. 4 of September 5, 2018 organizing personal health data, healthcare establishments must appoint a DPO.

For other types of sensitive personal data, it is preferable that each entity that processes personal data provides data subjects with an address of its DPO through which they can exercise their right of access to data and their right of opposition to their data processing.

Collection and processing

Collection and processing in Tunisia

The following principles generally apply to the processing of personal data:

Personal data must be collected directly from the data subject;
Personal data collected from third parties are permitted whenever the data subject, his heirs or his agent have provided their consent;
The processing of personal data must respect human dignity, privacy and public liberties, and whatever its origin or its methods, it shall not harm the human rights protected by the laws and the rules in force. In every case, it is forbidden to use personal data with the aim of infringing people's rights or damaging their reputation;
The collecting of personal data shall be exclusively carried out for lawful and clear purposes, and within the limits of the declared purposes. Any subsequent change of purpose must be the subject of a new declaration and a new consent from the person concerned; and
Among the main prerequisites for the legitimate processing of personal data is the informed consent of the data subject, which means that the processing of personal data cannot be carried out without the express and written consent of the data subject. This consent shall be governed by the general rules of law if the data subject is incompetent or unauthorized or incompetent to sign.

The data subject or his agent is allowed to withdraw his consent, at any time during the processing.

Additionally, and in the spirit of child protection, Tunisian law has provided extra protection to personal data relating to children as this kind of data cannot be carried out without the consent of the child’s agent and after authorization of the juvenile and family court judge.

Finally, the consent provided for the processing of personal data under a specific given shall not apply to other forms or purposes.

Also, the data subject has the right of access, which means the right to consult all the personal data related to him as well as the right to correct, complete, rectify, update, modify, clarify or delete it, when it has been proved that it is inaccurate, equivocal or prohibited for processing by law, and also, the right to obtain a copy of the personal data in clear language, in accordance with the content of the recordings and in an understandable way in the case of automatic processing.

And finally, at anytime, the data subject, his heirs or his tutor has the right to object to the processing of personal data related to him for good, legitimate and serious reasons, except when the processing is scheduled by law or is required by the nature of the commitment. Furthermore, the data subject, his heirs or his tutor have the right to object to the communication to third parties of personal data related to him, in order to exploit it for promotional purpose. The objection immediately suspends the processing.

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Transfer

Transfer in Tunisia

The transfer of personal data is treated in the 5th Chapter of the 2004 Act on the protection of personal data (Articles 47 to 52), and is generally prohibited or subject to strict measures, including prior authorization (submitted to the National Authority for Protection of Personal Data), and the explicit consent of the person in question, which is mandatory. The transfer of personal data to a foreign country is prohibited whenever it may endanger public security or Tunisia's vital interests.

The international transfer of personal data may not take occur if the foreign country does not provide an adequate level of protection. In every case, the authorization of the Instance is required before the transfer of personal data. The Instance shall issue its decision within one month from the date of receipt of the application.

When the personal data to be transferred concerns a child, the request is submitted to the family judge.

In its Decision No. 3 of September 5, 2018, the INPDP issued a non-exhaustive list of countries that represent an adequate level of protection of personal data, and to which the transfer is a priori possible, but always subject to obtaining the authorization of the INPDP.

According to Article 90 of Organic Law no. 2004-63 of July 27, 2004,

“Anyone who: .... - transfers personal data abroad without the authorization of the Authority; ...”.

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Security

Security in Tunisia

Each person who carries out directly or by a third party the processing of personal data shall take all the required steps to ensure the safety of the data processing and prevent any third party from changing, modifying or consulting it without prior authorization of the data subject. (article 18 of Organic-Law n°2004-63 of July 27th 2004 on the protection of personal data).

The data controller must ensure that its subcontractor (if any) also implements all the organizational and technical measures necessary to ensure the protection of personal data against any kind of breach.

The National Authority for Protection of Personal Data is responsible for determining the proper measures and necessary safeguards in order to protect personal data.

In case of violation of the personal data protection legislation, in addition to the dissuasive actions it can take, it can also file a complaint with the public prosecutor to initiate criminal action.

Under Decree-Law 2023-17 of March 11, 2023, on cybersecurity, companies involved in the automated processing of the personal data of people with whom they are in contact as part of the provision of their services via telecommunications networks must:

Carry out annual audits of their IT systems in accordance with the procedures laid down by law;
Inform the National Cyber Security Agency (ANCS) in the event of a cyber-attack;
Request that the organization be classified according to its level of digital confidence. This classification is carried out by the ANCS.

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Breach notification

Breach notification in Tunisia

Under Tunisian Law, it is up to the person in question to make this kind of notification, or to its heirs and agents in certain circumstances.

Also, under the terms of Decree-Law no. 2023-17 of March 11, 2023 on cybersecurity, companies engaged in the automated processing of the personal data of people with whom they come into contact as part of the provision of their services via telecommunications networks must inform the National Cybersecurity Agency (ANCS) in the event of a cyberattack.

Mandatory breach notification

The public prosecutor in the jurisdiction where the investigation takes place shall be informed by The National Authority for Protection of Personal Data of any offenses that it has detected.

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Enforcement

Enforcement in Tunisia

The National Authority for Protection of Personal Data is legally mandated to ensure compliance with the provisions of the Law, but there is no information about cases where sanctions were applied to personal data infringements.

A draft bill on personal data has been considered by the Parliamentary Committee on Rights and Freedoms in the former Tunisian Parliament, which revolutionizes the existing Law, and when adopted, will be in correspond to the European standards for Data Protection, the bill has not yet been passed.

Electronic marketing

Electronic marketing in Tunisia

Electronic Marketing is regulated under Tunisian Law by The Electronic Exchanges and Electronic Commerce Law n° 2000-83 enacted on August 9, 2000.

This law is quite comprehensive and regulates the main aspects of this field. For instance:

The preservation of the electronic document is as important as the preservation of the written document; and
Each person using an electronic signature device shall:
- Take minimum precautions to avoid illegitimate use of encryption elements or personal signature equipment; and
- Inform the electronic certification service provider of any fraudulent use of his electronic signature.

For matters concerning personal data that have not been regulated by this law, the general protection regime should be applied.

Concerning the exercise of digital advertising, Law n°2004-63 requires the consent of the person concerned. In this context, article 30 of the said Law provides that:

“It is prohibited to use the processing of personal data for promotional purposes unless the data subject, his heir or his tutor gives his explicit and specific consent. This consent shall be governed by the general rules of law. The provisions of article 28 of the hereby Act shall apply if the data subject is a child".

Online privacy

Online privacy in Tunisia

There is no specific mention to online privacy under the 2004 law on the Protection of Personal Data.

However, the same safeguards including restrictions and sanctions apply as well to online privacy under Tunisian Law.

Furthermore, it is prohibited to use the processing of personal data for promotional purposes unless the data subject, his heirs or his tutor gives his explicit and specific consent.

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Key contacts

Data protection lawyers in Tunisia

Mohamed Lotfi El Ajeri

Managing Partner

El Ajeri Lawyers - EAL

Tunis

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Under Tunisian law (Law n° 2004-63 dated July 27, 2004), there is no reference to Data Protection Officers.

Nevertheless, with regard to health data protection, Decision No. 4 of September 5, 2018 organizing personal health data, healthcare establishments must appoint a DPO.

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Data Protection in Tunisia

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