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ENSURING THE RIGHT OF THE DEAF AND HARD-OF-HEARING TO

ACCESS AUDIOVISUAL MEDIA: A REFORM PROJECT

August 2015

Policy Paper

Written by Rim Guermassi

Sign language interpreter and trainer since 2008.

Active in civil society and frequent collaborator of “Handicap

International”, OTDDPH, and “Give me a sign” (Montpellier, France).

Alumnus of “Tunisia Policy Shapers” (Jasmine Foundation)

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Table of Contents

Table of Contents ............................................................................................................................ 2

Abstract ........................................................................................................................................... 3

Chapter One: importance of the issue ............................................................................................. 4

1. Description of the problem ...................................................................................................... 4

1.1. Limited access to information through audiovisual media: .......................................... 4

2.1. Loose and incomplete legislation: .................................................................................... 5

2. The numbers: ........................................................................................................................... 5

3. Why intervene now: ................................................................................................................ 6

Chapter Two: the legal basis of claiming the right of the deaf and hard-of-hearing to access

information in Tunisia..................................................................................................................... 7

1. International framework: ......................................................................................................... 7

1.1. Convention on the Rights of Persons with Disabilities (CRPD) ...................................... 7

1.2. Convention on the Rights of the Child (CRC) ................................................................. 8

2. Tunisian legal texts: ................................................................................................................ 8

2.1. Constitution of 27 January 2014:...................................................................................... 8

2.2. Directive Law n°83 of 15 August 2005 on the promotion and protection of people with

disabilities: ............................................................................................................................... 9

2.3. Decree number 116 of November 2, 2011 in regard to freedom of audiovisual

communication and the creation of an independent supreme body for the audiovisual sector

............................................................................................................................................... 10

2.4. Set of Specifications (cahier de charges) for the creation and operation of private TV

channels ................................................................................................................................. 10

Chapter Three: main shortcomings of the current legal framework and comparison with other

countries ........................................................................................................................................ 10

Chapter Four: Recommendations ................................................................................................. 12

1. Regulatory measures: ............................................................................................................ 12

2. Encouraging measures........................................................................................................... 13

3. Sensitization measures .......................................................................................................... 13

4. Benefits of adopting these measures ..................................................................................... 13

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Abstract The deaf and hard-of-hearing community in Tunisia is virtually deprived from access to

audiovisual media because of the absence of the necessary regulations. This comes as a shock

considering the arsenal of international conventions signed by Tunisia and the local laws that

fully recognize their right to access to information and recreational activities and the obligation

of the State to ensure that.

In this policy paper, we set out to first explain the importance of the issue and its urgency, then

lay out the current legal framework in Tunisia and its shortcomings, display successful

experiences elsewhere in the world, and finally present our set of recommendations.

Key words:

Deaf and hard-of-hearing; access to information; access to audiovisual media; regulations;

recommendations.

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Chapter One: importance of the issue

The need of the deaf and hard-of-hearing to access audiovisual media has always been dire, but it

just grew bigger after the Jasmine Revolution as this category of people found it very hard to

keep up with the rapid changes and new developments (political, social, cultural, etc.). And

despite some efforts from the legislature to meet that need, the current measures and legal

framework are far from doing that. Profound improvements are yet to be made.

1. Description of the problem

The deaf and hard-of-hearing in Tunisia suffer from a real isolation, not only because of the

physical challenge they already face, but also because of the lack of effective measures granting

them equal access to information.

1.1. Limited access to information through audiovisual media:

The deaf and hard-of-hearing in Tunisia feel marginalized, just like most people with disabilities

do in general. They have not gotten enough attention so far from the authorities, in addition to

severe lack of public awareness of their issues and needs, thus living virtually in utter isolation.

This is illustrated, for instance, by their inability to understand what is broadcasted on television

due to limited programs that are accompanied by sign language interpreter or subtitles. It is a

scarce “luxury” limited to only the news journal, once a day, on a very limited number of TV

channels. This deprives them from the opportunity to improve their cultural and educational level

and enrich their vocabulary and personal skills, ultimately leading to more isolation and fewer

chances to integrate them into society. Slowly but surely, they become disengaged and

disconnected from the current events and happenings locally and internationally. For children,

the television offers content of recreational and educational nature that contributes to his

development and personality-building. Being unable to profit from that is such a loss. It’s like

closing his only window to the world, considering how difficult it is for a deaf child to

communicate with his counterparts in particular and external environment in general. Last but

not least, constantly needing someone to interpret and explain things while watching television is

somewhat humiliating for the deaf person and also burdensome to people around him. It further

deepens his feeling of dependency and could scar him forever.

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2.1. Loose and incomplete legislation:

Although it seems there is rich legislation strongly embracing the rights of disabled people

including the right to equal access to information in Tunisia -as we will detail in the next

chapter-, the current legal framework lacks a lot of specificities and resolutions that could

actually translate that goodwill into actionable measures of notable effect.

2. The numbers:

Statistics with regard to the deaf community in Tunisia are scarce and the numbers are often not

updated and somewhat unreliable. This perhaps mirrors once again the lack of attention this

group of people is getting from authorities. One official figure given by the “Institute of

Promoting the Disabled” which is administratively related to the Ministry of Social Affairs

indicates that the number of the deaf in Tunisia is estimated at 18,838 or the equivalent of 12%

of the overall disabled people in general. However, this number is calculated mainly based on

“Disability Cards” issued by the Ministry of Social Affairs itself. People who are close enough

from people with disabilities (especially the hard-of-hearing) know that many of them do not ask

for these cards –mainly for personal reasons. There are also some deaf people at remote inland

Tunisian regions that do not possess these cards as well. A 2008-study published on the website

of the World Federation of the Deaf (WDF) claims that the official number of deaf people in

Tunisia is 21,240. The study was conducted by WFD Interim Regional Secretariat for the Arab

Region (WFD RSAR). A less official number (yet probably closer to reality) is found on a

missionary website that estimates the number of the deaf people group in Tunisia at 53.500,

double the official number (www.peoplegroups.org).

Now, regardless of their exact number, this is first and foremost about their universal right in

equal opportunity and accessing information and the obligation of the state to provide them with

this right as guaranteed by the constitution and the international treaties (see next chapter). Our

approach is then primarily based on human rights, not a statistical or a ROI study.

As for the figures showing the limited access to audiovisual media by the deaf and hard-of-

hearing, a quick look into the broadcasting landscape in Tunisia reveals a sorry state of affairs.

As a matter of fact, of the 12 currently-broadcasting Tunisian TV channels, only 4 (including the

2 public ones) offer news bulletins accompanied by a sign language interpreter. That merely

represents a share that doesn’t exceed 3% of total programming time. Simply put, without

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assistance from a friend or a family member, the Tunisian deaf does not have access to a

whopping 97% of TV time, and that’s just shameful. Adding insult to injury, every household in

Tunisia pays a fee associated with the electricity bill for “accessing public TV”. This means that

people with hearing disability are paying for a service they truly need but don’t get in the first

place. In a May 2013 study with “Action on Hearing Loss”, Ofcom (Office of Communications

(Ofcom), the regulatory body for UK television broadcasting) found that 67% of people with

hearing loss said that TV is important to them. People with hearing loss watch TV for an average

of 4.3 hours a day. Considering the difficulty of dealing with the challenging real-world

environment, it seems that the hard-of-hearing find relief in TV.

3. Why intervene now:

The quest to enable the deaf and hard-of-hearing to get equal access to information just like the

“hearing” society consecrates the most important principles of the Jasmine Revolution, the

principles of dignity, fairness, equal opportunities and non-discrimination.

And while the new Tunisian Constitution was certainly set to protect these principles, now is the

time to get the constitutional text translated into more specific legislation and clear public

policies that can bring about these rights and protect them.

What’s more, the civil society has been increasingly active since the revolution thanks to the

greater space of freedom of expression. This has encouraged many groups of minorities and

marginalized people to come out and speak out to demand their rights, and we believe seize the

opportunity and act fast before the momentum goes away.

Perhaps more relevantly, the creation in May 2013 of a constitutional body that supervises the

audiovisual industry and all the operating radios and TV channels that is currently amidst the

reform of the law governing the audiovisual sector is the very reason this paper comes at a

perfect timing. This new governing body, called HAICA (Haute Autorité Indépendante de la

Communication Audiovisuelle) or Supreme Independent Authority for Audiovisual

Communication, is the equivalent of the Office of Communication (Ofcom) in the UK and the

Federal Communications Commission (FCC) in the United States. It governs all the aspects of

the audiovisual sector, sets regulations, and gives licenses to radios and TV stations. HAICA has

been very open to civil society so far by organizing several workshops on the reform of the law

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organizing the audiovisual sector and it had consistently welcomed input from participating

CSOs. I personally was pleased to see that all my suggestions were included in the final

workshops report.

Tunisia is living today a transitional phase where it aspires to join the ranks of developed

countries, and to achieve this it is necessary to architect a comprehensive development strategy

that gets all of its citizens proactively involved. No one should be leaved behind.

Chapter Two: the legal basis of claiming the right of the deaf and hard-of-

hearing to access information in Tunisia

Not so surprisingly, there are almost no texts pertaining to the deaf and hard-of-hearing in

particular, but as part of people with disabilities, there is indeed a solid legal basis to claiming

their right to access information.

1. International framework: Tunisia has always led Arab countries in adopting international treaties and conventions.

1.1. Convention on the Rights of Persons with Disabilities (CRPD)

Adopted by the United Nations General Assembly on 13 December 2006, and opened for

signature on 30 March 2007, the Convention provides enough standards of protection for the

civil, cultural, economic, political and social rights of persons with disabilities on the basis of

inclusion, equality and non-discrimination. It makes clear that persons with disabilities are

entitled to live independently in their communities, to make their own choices and to play an

active role in society. Tunisia adopted the convention 2008.

In this convention composed of 50 articles, there is a whole article dedicated to accessibility

(Article 9) with 8 points. Here are the last three of them:

[States Parties shall also take appropriate measures to:]

f. Promote other appropriate forms of assistance and support to persons with disabilities to

ensure their access to information;

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g. Promote access for persons with disabilities to new information and communications

technologies and systems, including the Internet;

h. Promote the design, development, production and distribution of accessible information and

communications technologies and systems at an early stage, so that these technologies and

systems become accessible at minimum cost.

1.2. Convention on the Rights of the Child (CRC)

Tunisia signed this treaty on 26 February 1990 while it was originally signed by the United

Nations General Assembly on 20 November 1989 and became effective on 2 September 1990.

The 2 following points (1 and 3) from Article 23 speak very much to the right of disabled

children to get empowered with equal accessibility whenever possible:

Article 23:

1. States Parties recognize that a mentally or physically disabled child should enjoy a full and

decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's

active participation in the community.

3. Recognizing the special needs of a disabled child, assistance extended in accordance with

paragraph 2 of the present article shall be provided free of charge, whenever possible, taking

into account the financial resources of the parents or others caring for the child, and shall be

designed to ensure that the disabled child has effective access to and receives education,

training, health care services, rehabilitation services, preparation for employment and

recreation opportunities in a manner conducive to the child's achieving the fullest possible social

integration and individual development, including his or her cultural and spiritual development.

2. Tunisian legal texts:

2.1. Constitution of 27 January 2014:

There are clear hints supporting the right of disabled people to access information equally and

the obligation of the state to just ensure that:

Article 32: Access to information

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The state guarantees the right to information and the right of access to information and

communication networks.

Article 48: Persons with disabilities

The state shall protect persons with disabilities from all forms of discrimination. Every disabled

citizen shall have the right to benefit, according to the nature of the disability, from all measures

that will ensure their full integration into society, and the state shall take all necessary measures

to achieve this.

These two articles combined make up a very strong legal basis to the recommendations we will

lay down in chapter five.

2.2. Directive Law n°83 of 15 August 2005 on the promotion and protection of people with

disabilities:

The law sets out to ensure equal opportunities for disabled persons and protect them from any

discrimination, and it really makes it clear that this is a national responsibility that concerns local

authorities, public institutions, private sector, civil society, etc. (Article 3).

As for the right to access information and recreational media, Articles 10 and 36 address this

issue rather pertinently:

Article 10:

State, local authorities and public and private enterprises and institutions shall work to ensure

the suitability of the environment and the appropriateness of the means of communication and

information and facilitate the movement of persons with disabilities and their access to services.

Article 36:

The State guarantees the right of people with disabilities to undertake cultural, sporting and

recreational activities and benefit from them. The State shall remove the barriers to performing

these activities normally and shall provide encouragement and facilities to promote them.

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2.3. Decree number 116 of November 2, 2011 in regard to freedom of audiovisual

communication and the creation of an independent supreme body for the audiovisual sector

Article 4 (Chapter 1): Every citizen has the right to access to information and to audiovisual

communication.

2.4. Set of Specifications (cahier de charges) for the creation and operation of private TV

channels

On March 2014, the Supreme Independent Authority for Audiovisual Communication (HAICA)

issued its first set of specification for those who want to obtain a license to launch and operate a

private TV station.

Article 14 states the ethics and principles that should be adopted by the license holder, namely

equality and non-discrimination, in addition to the protection of the rights of the elderly, people

with disabilities and vulnerable categories.

What’s more, this is the first regulation to bluntly refer to the right of the deaf and hard-of-

hearing to access TV content albeit in a very limited way. Indeed, Article 24 stipulates that the

license holder must ensure one daily news bulletin accompanied with a sign language interpreter.

Finally, the appendix related to children stresses their right to access information, participation

and entertainment.

Chapter Three: main shortcomings of the current legal framework and

comparison with other countries

The Tunisian legal framework offers a strong foundational basis to achieve the rights of the deaf

and hard-of-hearing from a human rights perspective. However, its fails to provide the measures

and regulations necessary to grant them equal access to information on audiovisual media. As

mentioned in the previous chapter, neither the laws related to the protection of the rights of the

disabled nor the regulations governing the audiovisual sector oblige TV networks to add subtitles

(closed captions; CC), subtitles for the deaf and hard-of-hearing (SDH) or a sign language

interpreter to their programs. Only the set of specifications issued by HAICA stipulates that

every license holder must ensure one daily news bulletin accompanied with a sign language

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interpreter, but then it doesn’t elaborate on the penalties (probably of financial nature) of non-

compliance with that requirement.

By comparison, many other countries took successful steps in the rights direction and they

reaping of rewards of such measures.

One of the best examples is France. The law 2005-102 of 11 February 2005 for equal rights and

opportunities, participation and citizenship of people with disabilities, gives five years to major

French public and private TV channels to make all of its programs accessible to the deaf and

hard-of-hearing, either by translating them into French sign language (LSF) or by adding

subtitles. The other TV channels (with less than 2.5% audience share) would have to make ‘only’

40% of their programs accessible. A study had shown that, by 2009 (i.e. one year before the

deadline), 83% of the programs offered by major French TV outlets were accessible to the deaf

and people with hearing loss.

In the UK, Ofcom’s “Code on Television Access Services” (last update December 2012)

provides similar provisions. This code sets the specific requirements for subtitling, sign

language, and audio description for licensed television broadcasters. Broadcasters need to reach

certain accessibility milestones 5 years and 10 years after the ‘relevant date': 60% of all

programming must be subtitled by year 5, and 80% must be subtitled by year 10.

In the United States, the FCC is way ahead of its counterparts as the commission first handed

down significant captioning requirements in the 1990s and then again in 2002. In fact, FCC

seems now to be past ensuring access to TV as it shifts its interest to regulating web accessibility

for people with hearing disabilities. According to FCC, “Full-length Internet video programming

must be captioned if the programming is shown on TV in the U.S. with captions”. This means

that TV channels that re-run or distribute their content on the Internet must add closed captions

to it (see figure 1 below). This is totally relevant to the Tunisian context as most TV stations

have official YouTube channels where they upload their programmes shortly after the initial

broadcast.

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Figure 1. A screenshot of one of the captioned videos from Comedy Central YouTube Channel.

One final example is Australia. Australian broadcasters have been compelled to add closed

captioning to programming since the 1992 Broadcasting Services Act (BSA). This law gave

Parliament the right to establish codes of practice that include “captioning of programs for the

hearing impaired.” In 1999, the BSA's title was amended with “Online Services” to cover digital

television in addition to radio broadcasting. Additional amendments passed in 2001 and 2010

adjusted the requirements for how many public television programs, or “Free Air TV”, needed

captions and established timeframes for compliance.

Chapter Four: Recommendations

1. Regulatory measures:

We suggest that the set of specifications (French: cahier de charges) issued by HAICA relating

to licensing TV channels get amended to include a section on accessibility for people with

hearing disabilities, or maybe the HAICA issues a separate act devoted to the matter. Either way,

we urge the supreme independent authority for audiovisual communication to engage TV

stations in a comprehensive and progressive 5-year plan that will enable people with hearing

disabilities to profit from a healthy share of the broadcasted programmes. Taking into

consideration the specificities of the Tunisian context, we suggest the following plan:

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a) All licensed TV channels must provide a sign language interpreter for at least two news

bulletins per day in the span of one year.

b) Add closed captions (subtitles) or subtitles for the deaf and hard-of-hearing (SDH) to 40% of

the recorded programs in the span of 3 years, and to 60% in the span of 5 years.

c) All TV programmes broadcasted originally with closed captions on TV and then re-diffused

on the official channels of the TV stations on the Internet should also be subtitled online.

Failure to comply with the above-mentioned instructions will result in financial penalties (TBS)

or even de-licensing the TV station.

2. Encouraging measures

In various parts of the current legal framework, we find that the State is compelled to take all

necessary measures to protect the rights of people with disabilities and encourage all initiatives

and programs that could help with their integration within the society. Therefore, we propose

fiscal incentives for TV stations that positively engage with the suggested amendments above

and also companies that produce closed captions and subtitles for the deaf and hard-of-hearing.

A State-sponsored capacity building program should be envisioned as there are no enough talents

to provide this very technical task at the present time.

3. Sensitization measures

It is necessary to conduct sensitization campaigns and develop the awareness of society to learn

more about the specificities and needs of people with hearing disabilities, their rights, and how to

ensure the involvement of all stakeholders in a comprehensive system to better integrate them

into society and improve their living conditions and quality of life.

This cannot be the responsibility of the State alone. Civil society, political parties and private

sector should all get involved to make things happen fast and effectively.

4. Benefits of adopting these measures

Succeeding in adopting and implementing the above-mentioned measures will improve the

educational and cultural level of the people with hearing disabilities. It will help them achieve

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greater levels of autonomy and self-dependency. What’s more, it will create job opportunities for

sign language interpreters and closed captions producers.

It’s also noteworthy that not only deaf people seek subtitles. A 2006 research study conducted by

Ofcom found that 7.5 million people in the UK (18% of the population) used closed captions: of

that 7.5 million, only 1.5 million were deaf or hard of hearing. This suggests that 80% of

television viewers used closed captions for reasons other than hearing loss, and that closed

captions benefit many more than just those who require them for accessibility.

Finally, and perhaps most importantly, these measures will fulfill the constitutional principles of

equal opportunity, equality and non-discrimination.