The Right to Access Information
Module 1: General Overview of Trends in Digital Rights Globally
There is increasing recognition around the world that access to the internet is a critical component of the right to access information (in addition to others such as the right to education).(1) Access to the internet has increased significantly over the last decade, but, regrettably, so too have new and innovative restrictions on how people access the internet, including internet shutdowns, blocking and filtering of content, social media taxes, censorship, and distributed denial of service (DDoS) attacks.
Internet shutdowns
Dozens of countries have been affected by internet shutdowns in recent years. Between January and May 2023, a period of just five months, Access Now recorded 80 internet shutdowns in 21 countries.(2) With 2024 being dubbed the biggest election year in history, it has been predicted that internet shutdowns will be on the rise.(3) An example of this has been seen as early as February 2024, when Senegal experienced an internet shutdown after the President announced that the country’s elections would be delayed.(4)
Civil society takes the Senegalese government to court in 2024
In February 2024, a Senegalese-based civil society organisation, AfricTivistes, and Senegalese journalists launched a lawsuit in the ECOWAS court against the government’s internet shutdowns.(5) This action was filed in collaboration with Media Defence and the Stanford Law School’s Rule of Law Impact Lab. The Applicants argue that Senegal’s internet restrictions violate rights to freedom of expression and the right of journalists to operate, while significantly undermining freedom of the press. They seek interim measures that will protect Senegalese citizens against further internet shutdowns in the lead-up to presidential elections, which are now set to take place in December 2024.
Since experiencing a coup in 2021, internet shutdowns in Myanmar have been and continue to be imposed by the military across many parts of the country.(6) In 2022, the United Nations (UN) condemned the attempt to establish a “digital dictatorship” and the use of internet shutdowns to undermine public opposition. The UN found that since August 2021, 31 townships in the 7 states of Myanmar had reported internet shutdowns and a further 23 townships experienced throttling of internet speeds.(7) The longest nationwide outage has been reported as being for nearly 2.5 months.(8) These internet shutdowns typically coincide with an escalation of military offensives and human rights violations by the military (9)
Within Africa, Zimbabwe and the Tigray region of Ethiopia have seen some of the most prolonged internet shutdowns in history:
- At the beginning of 2019, the Zimbabwean government ordered a three-day internet shutdown across the country amid protest action. Following an interim court ruling, the internet was partially restored.(10) Zimbabwe experienced internet shutdowns again in 2022,(11) and there were further reports of the quality of internet access being degraded ahead of the 2023 elections.(12)
- In Tigray, a northern region of Ethiopia in which fighting between rebels and government forces has been ongoing since November 2020, the internet and phone service have been shut down for over two and a half years despite a peace agreement between the parties.(13) Furthermore, in mid-2023, the government imposed new restrictions in other parts of the country by blocking access to mobile internet in the Amhara region and restricting mobile data across several major cities in the region.(14) In February 2023, social media platforms including Facebook, TikTok, and Telegram were also shut down.(15)
Shutdowns also occurred in Sudan, Libya, Somaliland, Sierra Leone, Tunisia, and Burkina Faso in 2022, and in Guinea, Mauritania, Uganda, Sudan and Somaliland in 2023.(16) In October 2023, during Mozambique’s local government elections, reports recorded internet cuts.(17)
Case note: ECOWAS Court finds internet shutdown violates free expression
In a positive legal development, the ECOWAS Court in Amnesty International Togo and Ors v. The Togolese Republic (2020) that the Togolese government had violated the right to freedom of expression by shutting down the internet during protests in that country in September 2017, finding that access to the internet is a derivative right that enhances the exercise of freedom of expression.(18)
As the country did not have a national law that specified the grounds on which an interference in the right to freedom of expression could be justified, the Court concluded that the internet was not shut down in accordance with the law and that the government had violated Article 9 of the African Charter on Human and Peoples’ Rights (African Charter). This was further bolstered by the judgment in SERAP v Federal Republic of Nigeria (2022) in which the ECOWAS Court held that the government’s suspension of Twitter in the country in 2021 also violated the rights to freedom of expression, access to information and the media.(19)
As mentioned previously, the ECOWAS Court in 2023 similarly ruled that the Guinean government had unjustifiably restricted freedom of expression and access to information by way of internet shutdowns, and ordered the government to ensure that this violation does not occur again and to implement laws and other safeguards to fulfil their international law obligations.(20)
Other regions have seen similar trends. In Colombia, the Constitutional Court held in September 2023 that the government had violated the rights to freedom of expression, association, and assembly due to their failure to provide petitioners with timely, truthful, and complete information about internet shutdowns during public protests that occurred in 2021.(21) The Court ordered the State to respond publicly on these issues.
It has become clear that internet shutdowns are increasingly a tool used by governments to control criticism and protest, especially at times of civil unrest or around election periods, and as military tactics during conflicts. For example, recent internet shutdowns in Ukraine and Gaza demonstrate how access disruptions are used as a tactic of warfare to control information flows:
- Since the invasion of Ukraine by Russia in 2022, internet shutdowns have been routinely used as a part of Russian military tactics to prevent Ukrainians from sharing or receiving news about the war, getting information about humanitarian aid, or fact-checking information.(22)
- Since October 2023, 15 of the 19 internet providers operating in Gaza have faced total shutdowns at the hands of Israeli forces. Internet traffic across Gaza decreased by 80% throughout October 2023 as a result of direct attacks on telecommunications infrastructure, restrictions on access to electricity, and technical disruptions to telecommunications services.(23) Israel’s bombing campaign has reportedly specifically targeted network installations and disabled much of the communications infrastructure linking Gaza and the rest of the world.
However, recent jurisprudential developments have indicated strong legal support for the position that such shutdowns are an unjustifiable violation of the right to freedom of expression and access to information, and it is hoped that such developments will continue and will spark the necessary civic awareness — particularly among mobile operators and civil society — to generate action that will ensure the protection of people’s rights in the digital age.
#KeepItOn
Access Now’s #KeepItOn coalition monitors and reports on internet shutdowns across the globe. The #KeepItOn coalition has been fighting internet shutdowns with various creative approaches, including grassroots advocacy, direct policymaker engagement, technical support and legal interventions.
Important initiatives such as these are likely to continue as lawyers and civil society organisations (CSOs) find new ways to push back against attempts to restrict access. These initiatives fulfil an essential role in keeping users informed about state actions that are contrary to international human rights norms.
More Resources on Internet Shutdowns
Blocking and filtering of content
In addition to full-scale blackouts, censorship of online content has also been on the rise over the past decade around the world. An increasingly prevalent form is the blocking and filtering of certain content on social media. Blocking refers to the prevention of access to a website, domain, or IP address. In contrast, filtering is the use of technology to sieve through content, blocking individual pages that display specific characteristics.(24) Although considered less extreme than internet shutdowns or other measures that fully limit access, such mechanisms are also deeply concerning for the potential they have to distort the information that is available to a population, potentially enabling propaganda and limiting diverse viewpoints in more subtle ways than total restrictions on access. Blocking and filtering may, in some instances, constitute a violation of Article 19 of the Universal Declaration of Human Rights (UDHR), which grants everyone the right “to seek, receive and impart information and ideas through any media and regardless of frontiers.”(25)
In the last decade, China has developed the largest and the most sophisticated online censorship regime in the world. As a result, many controversial events are prohibited from news coverage, preventing Chinese citizens from becoming aware of their government’s actions.(26) The COVID-19 pandemic again illustrated how China blocks and filters content around topics that it deems to be harmful, thereby denying its citizens the opportunity to access information.(27)
China is not alone in this regard. Several governments have taken to censorship in order to control the flow of information, especially around critical times like election periods or conflict. In a 2011 Report, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (UNSR on FreeEx) noted with particular concern the—
“emerging trend of timed (or “just-in-time”) blocking to prevent users from accessing or disseminating information at key political moments, such as elections, times of social unrest, or anniversaries of politically or historically significant events. During such times, websites of opposition parties, independent media, and social networking platforms such as Twitter and Facebook are blocked, as witnessed in the context of recent protests across the Middle East and North African region.”(28)
Unfortunately, in recent years this trend has continued unabated in several African countries. For example:
- In early 2019 when Chad reached over 365 days of censored access to the internet following a recommendation to amend the Constitution to allow the President to remain in power until 2033.(29)
- More recently, in 2023, NetBlocks reported that Gabon had blocked access to social media platforms on the day of presidential and legislative elections.(30) Access was restored after 4 days after military officers announced that they had taken power of the country.(31)
- Similar social media restrictions have occurred in other countries such as Zambia,(32) Uganda,(33) and Cameroon just before or after election periods.(34)
Blocking and filtering of content is also ordered by governments in order to cover up other violations of human rights:
- In 2021, the Eswatini government ordered all operators to suspend access to Facebook, WhatsApp, and Twitter as it claimed that social media was being used to “spread misinformation” contributing to violence around the country.(35) However, this and other internet disruptions at the time were reported to have been ordered instead to quell pro‑democracy protests and reports about police brutality.(36)
- In 2021, the Nigerian government banned Twitter in what was widely seen as retaliation by President Muhammadu Buhari for Twitter’s moderation of a tweet that it says violated its policies on incitement.(37) As discussed above, the ECOWAS Court held in a foundational case for social media blocking that the seven-month ban was unlawful and violated the freedom of expression of the people of Nigeria.(38)
- In Zimbabwe in 2022, the opposition Citizens’ Coalition for Change (CCC) reported the throttling of internet speeds and blocking of access to social media during a political rally held ahead of the national elections.(39)
- In 2023, the Senegalese government blocked certain social media platforms after they re-arrested an opposition leader, whose initial arrest had sparked riots across the country.(40)
This phenomenon is a threat not only to the public’s right to access information but also to the very core of democracy which relies on the free flow of information to support informed public participation. It is expected that with increases in the number of people with access to the internet and the potential for citizen organisation and uprisings on social media, resultant increases in censorship may be likely.
Social media taxes
In recent years, several African states have introduced, or considered introducing, taxes specifically for the use of social media, ostensibly to raise public revenues or protect the local telecommunications sector from competition. This has resulted in more people being pushed offline, increased barriers to accessing the internet, and limits on freedom of expression and access to information — as well as severe economic impacts.(41)
The Web Foundation has noted that Africa is the continent with the highest financial barriers to internet access.(42) Social media taxes add yet another barrier to a resource that is already inaccessible to many, a phenomenon which serves to deepen the digital divide and hinder people’s rights. For example:
- In Uganda the government imposed a tax scheme for the daily use of mobile communications apps such as Facebook, Twitter, Instagram, LinkedIn, WhatsApp, Snapchat, and Skype in 2018. The Collaboration on International ICT Policy in East and Southern Africa (CIPESA) recorded that the internet penetration rate in Uganda dropped by 5 million users within three months of the scheme’s rollout, severely limiting freedom of expression and access to information.(43) Research also found that the tax lowered domestic tax revenue.(44) Uganda subsequently abandoned the over-the-top (OTT) tax but later introduced a new 12% excise tax on internet bundles that is reportedly disproportionately affecting women, exacerbating the gender digital divide.(45)
- Tanzania and Zambia have also initiated such schemes, along with attempts in a host of other countries in East and Southern Africa.(46) Some taxes have taken a slightly different form, such as Ghana which implemented a 1.5% levy on electronic money transfers.(47) However, despite these growing concerns, there have been notable successes in challenging this emergent threat.
Don’t Tax My Megabytes
In 2018, the citizens of Benin took to social media following the introduction of a tax that specifically targeted the use of social media networks.
Thousands of social media accounts on Facebook and Twitter used the Hashtag “TaxePasMesMo” (Don’t Tax My MegaBytes). After a few weeks of concerted digital protest, the government repealed the tax.
Internet Without Borders welcomed the victory and noted:
“The mobilisation online, around the Hashtag #TaxePasMesMo (Don’t Tax My MegaBytes), showed to the world the anger of netizens in the country. This anger and resentment enabled them to denounce the tax and to enter into a dialogue with the authorities, which fortunately led to the tax’s cancellation. This case also shows the strength of the young Beninese democracy. The annulment of the social media tax is an important precedent for digital rights and freedoms in West Africa.”
In contrast to the burden of social media taxes placed on internet users on the continent, there is growing support for the notion that international digital platforms, particularly the social media companies, should be taxed in the countries in which they operate and generate revenues, including those in Africa. In 2023, the Organisation for Economic Co-operation and Development (OECD) secured agreement from 138 countries on a landmark initiative that would enable major reform to the international tax system to more fairly tax digital platforms in the jurisdictions in which they earn revenue.(48) This is seen as a more equitable and rational way of boosting tax revenues in countries seeking to benefit from the rise of digital technologies without hindering the expansion of access to the internet to those with limited ability to pay.
Registration of bloggers
Bloggers are a largely undefined group of people who write online entries, self-publish, might remain anonymous and write either semi-professionally or professionally.(49) In addition to their individual rights to freedom of expression, these types of internet users fulfil an important role in our contemporary society by disseminating information and enabling discussion, and many international standards and guidelines on freedom of expression online provide legal standards that protect bloggers and journalists alike.(50)
In recent years, there has been a rising trend of implementing laws and regulations that require these kinds of users to register or obtain licenses in order to continue publishing online:
- In 2018, Tanzania introduced new laws that require bloggers and online television outlets to pay large annual licensing fees (the amounts were subsequently revised in 2021, though are still significant).(51) The law also makes blogging without a license a criminal offence and enables publishers to lose their license for publishing content that “causes annoyance” or “leads to public disorder,” drawing heavy criticism from civil society organisations. Human Rights Watch notes that the licensing fee has introduced a severe barrier to freedom of expression and the dissemination of information and that the disproportionately high fees are pushing bloggers offline.(52)
- In Kenya, a 2019 private members’ bill, the Information and Communication (Amendment) Bill, sought to introduce regulations relating to the licensing of social media platforms and the sharing of information by licensed persons.(53) The Bill would require the registration of bloggers and allow the Communications Authority to develop a bloggers’ code of conduct. As of 2024, the Bill has not yet passed and has since gone through several iterations.
- In 2020, Lesotho proposed the Lesotho Communications Authority (Internet Broadcasting) Rules which sought to require all social media users with over 100 followers to register as “internet broadcasters” and comply with the rules governing broadcast media houses.(54)
- Zambia’s Independent Broadcasting Authority likewise issued rules requiring online television stations to obtain a broadcasting license and criminalising online broadcasting without such a license.(55)
Growing threats to formal and informal modes of journalism are on the rise. Imposing burdensome obligations on bloggers and journalists should be strongly condemned, and states should be compelled to respect and protect their international human rights obligations.
Increased access and the need for digital literacy and safeguards
Information and Communication Technologies (ICTs) have become critical tools for boosting economic growth and development. In doing so, they have the potential to assist with the achievement of socio-economic goals and aspirations. In order to achieve these benefits, however, access to ICTs must be coupled with digital literacy programmes to enable people to access and make use of the internet safely and meaningfully.
Almost all countries around the world have experienced a dramatic increase in access to ICTs in recent years. Statista records that Africa has taken great strides in recent years, with an estimated 570 million African internet users in 2022, 645 million in 2023 and a predicted 729 million in 2024 — representing exponential growth in the previous decade.(56)
Digital literacy is critical to realising the full potential of digital development and that all users are able to use online spaces safely and inclusively and leverage the benefits of the digital era. As societies have become increasingly dependent on digital tools in the wake of the COVID-19 pandemic, the necessity of digital literacy has only become more urgent.
Digital literacy in Africa
In 2020 Afrobarometer found that 55% of adults in Africa were likely to be ill-prepared for remote learning to participate in or assist members of their household with a transition to an online learning environment.(57) Measures of African citizens’ ability to use digital devices and applications and to access the internet show that while there have been dramatic improvements in recent years, there are still significant differences between countries. In Mozambique, for example, only 10% of people had successfully adopted digital skills in 2019, compared to 30% in Kenya.(58) Africa also falls behind other regions of the world in this regard.(59)
It is forecasted that by 2030 there will be 230 million jobs in sub-Saharan Africa that require digital literacy. To match this expectation, it is reported that 650 million training opportunities will need to be made available by 2030.(60)
Guidance on the requirements for effective digital literacy programmes is provided under several international instruments. For example, the UN Committee on the Rights of the Child (UNCRC) General Comment 25 on children’s rights in relation to the digital environment(61) notes that:(62)
- State parties should ensure that digital literacy is taught in schools, as part of basic education curricula.
- Curricula should include the knowledge and skills to safely handle a wide range of digital tools and resources. They should also include critical understanding and guidance on how to find trusted sources of information, and how to identify dis- and misinformation, and other forms of biased content.
- State parties should promote awareness among children of the possible adverse consequences of exposure to risks relating to content, contact, conduct and contract, as well as coping strategies to reduce harm and strategies to protect their personal data and those of others. State parties must build children’s social and emotional skills and resilience within this context.
While there are pockets of progress in advancing internet access, improvements in internet access and increases in demand must be proportionally matched with efforts to boost digital literacy rates in order to protect new internet users from online harms, to build safe, inclusive, and constructive online public domains, and to ensure that the full spectrum of ICT opportunities is available to everyone. Without appropriate digital literacy as internet access continues to grow, online harms will persist and may increase, putting some of the most vulnerable members of our society at risk.
Digital literacy, online harms, and gender
Research has shown that women and other historically marginalised groups bear the brunt of online harms perpetrated through the internet, such as cyber-harassment.(63) This means that a failure to implement comprehensive and effective digital literacy programmes is likely to exacerbate the existing gender digital divide by deterring women’s participation online and enabling ongoing violations of the right to equality in the digital domain. As such, it is vital that digital literacy programmes be undertaken in a gender-sensitive and informed manner so as to account for and mitigate the particular harms faced by women online.
The interplay between net neutrality and zero-rated content
Net neutrality refers to the principle of seeking to ensure that access to digital content is open, free-flowing, fair, and equal. The Electronic Frontier Foundation (EFF) explains that net neutrality fulfils the critical role of ensuring that people can freely access information and impart ideas across the digital information society, without interference or direction from other actors.(64)
Efforts to control the free flow of information have the potential to distort content consumption by enabling free access to certain content in preference to other content, as well as access to the market. Net neutrality may be under threat by the increasingly popular initiative in Africa of zero-rating, a process in which specific online content is made available for free to users (i.e., without the need to pay telecommunications providers for the associated data costs) on the grounds that it is of public interest, such as news or educational content.
There are levels to this debate, with some arguing that zero-rating can be a tool to facilitate universal access to the internet and to critical public good information. Many digital rights activists, however, argue that zero-rating is a means for the new internet gatekeepers to centralise power and control access.
Net neutrality in contestation
During 2015 and 2016, the net neutrality debate took centre stage in India when Facebook and Airtel offered differential pricing for access to certain content and no-fee access to other content. Following public outcry, the Indian Telecom Regulatory Authority of India (TRAI) announced that shaping users’ access to the internet would not be allowed. India then moved to adopt strong net neutrality regulations.(65) However, in 2023, concern arose again following TRAI signalling its interest in understanding the “feasibility of introducing an authorisation framework, network usage fee, and selective banning of internet-based services.”(66) In response, Access Now, the Internet Society, and 22 other civil society organisations and technical experts are engaging with the TRAI noting their concern that “the proposed measures, if implemented, will fragment the internet, undermine people’s rights, and stifle innovation.”(67)
Ways to implement net neutrality vary across a broad spectrum in practice: (68)
- Brazil outright prohibits discriminatory conduct.
- India bans pricing differentials based on content.
- The Netherlands prohibits blocking internet services, usage of deep-packet inspection for tracking customer behaviour, and other forms of network traffic manipulation.
- Various ex ante measures, including price regulation, surcharges, and zero-rating, have been implemented with differing levels of success. Canada, Singapore, and Slovenia have adopted these measures to varying degrees.
African countries — many of which continue to face low internet penetration rates — are often supportive of zero-rating policies that advance access to public good content. In South Africa, for example, the government required mobile operators to zero-rate a wide range of websites to enable virtual learning to continue when the COVID-19 pandemic hit the country in early 2020, forcing the rapid closure of schools, universities, and other educational institutions and threatening to undermine the right to education for millions of young South Africans. The South African Department of Communications and Digital Technologies later published directions providing a framework for the zero-rating of websites for education and health.(69) The pandemic-related initiatives also led to new mandatory zero‑rating obligations being placed on mobile operators that were vying for new spectrum licenses in a long-awaited spectrum auction which took place in March 2022.(70) Despite this gain, the process has since stalled with concerns that the Independent Communications Authority of South Africa (ICASA) has failed to enforce the zero-rating of government and public benefit organisations.(71)
As these examples show, while zero-rating carries implications for net neutrality, in societies with challenges to ICT access, the policy is often viewed favourably. The potential effects require careful consideration of who is empowered to make decisions about what content should be freely accessible, and the involvement of affected populations in such decisions. There are also concerns that developing and transitioning economies may be pressured into accepting distortive zero-rating programmes by powerful international multinationals. The experience in India has highlighted the need to ensure that access to ICTs is not controlled or shaped by service providers who may use development priorities as a guise to control access for the most marginalised people.
The rise in cybercrimes and cyber attacks
There is growing attention to the prevalence of cybercrime as a threat to digital rights and inclusion, and the need for more appropriate state response mechanisms. Attacks on individual users, businesses, CSOs, and states are becoming commonplace: in 2023, Africa continued to be one of the world’s regions targeted most by cybercrime due to the increased digitisation of organisations without the necessary corresponding cybersecurity practices.(72) In 2021, cybercrime was reported to have reduced GDP within Africa by more than 10%, at a cost of an estimated 4.12 billion USD.(73) Similar reports were made for 2022.(74)
Interpol has identified online scams, digital extortion, business email compromise, ransomware and botnets as the top five cyber threats in Africa at present.(75) In addition, the rise of Artificial Intelligence (AI) technologies, including public access to generative AI, is likely to result in a rapid expansion of more targeted and sophisticated cybercrime in the coming years.(76)
While cybercrime itself poses a serious threat to human rights, the corresponding rise of oppressive and aggressive cybersecurity measures is also jeopardising the realisation of an array of digital rights. The UN Conference on Trade and Development (UNCTAD) reports that 39 out of the 54 countries in Africa analysed (72%) have cybercrime legislation in place.(77)
Despite legitimate security concerns, there is a growing trend of oppressive cybercrime laws that “do little other than robbing internet users of their basic human rights.”(78) The intense and often vague legislative measures implemented to counteract cybercrime are frequently weaponised by oppressive states to restrict fundamental human rights and freedoms, leaving internet users vulnerable to both these crimes and the harsh response they elicit. In response to rapidly growing and evolving cybercrime risks, states will likely continue to be reactive and adopt measures that are unlikely to accord with international human rights norms.
Litigating broad and vague cybercrimes legislation
Several cases in sub-Saharan Africa have sought to challenge the trend of over-broad, vague, and potentially stifling cybercrime provisions, with, unfortunately, little success to date. For example, in Nigeria, two cases in the Court of Appeal in Lagos denied constitutional challenges to sections of the country’s Cybercrime Act, 2015 that argued for infringements on the right to freedom of expression.(79)
In Kenya, petitioners initially achieved some success in 2018 in securing the suspension of problematic provisions of the Computer Misuse and Cybercrimes Act, 2018; however, the order was overturned, and the provisions were declared constitutional by the High Court in 2020.(80)