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    The Right to Access Information

    Module 1: General Overview of Trends in Digital Rights Globally and Expected Developments

    Access to the internet has increased significantly over the last decade. Regrettably, restrictions on the right to access information have also increased. Internet shutdowns, blocking and filtering of content, social media taxes, censorship and distributed denial of service (DDoS) attacks have been some of the common dangers facing internet users. 

    Internet shutdowns

    Several countries have been affected by internet shutdowns in the past ten years. Myanmar, Zimbabwe and India have seen some of the most prolonged internet shutdowns in history. In 2019, Myanmar experienced more than 100 days without internet services. In justifying the shutdowns, the chief engineer for the state-owned Myanmar Posts and Telecommunications insisted that the internet shutdowns were for the benefit of the people.(1) The start of 2020 saw another spate of internet shutdowns in two of Myanmar’s conflict-ridden states.(2)

    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, but some social media platforms remained blocked.(3) India had nearly 100 internet shutdowns during 2019, including the most protracted recorded shutdown in history in Kashmir.(4) During the last quarter of 2019, the Supreme Court in India ruled that indefinite internet shutdowns violated freedom of speech and expression. Resultantly, the government was ordered to in future publish reasons, including the duration of the shutdown each time it wishes to implement this action.(5)

    At the rate at which the internet shutdown trend is growing, there is a possibility that this may be something that governments will continue to implement in the future, especially at times of civil unrest or around election periods. However, the recent jurisprudential developments in India may spark necessary civic awareness to ensure the protection of people’s right to access information.

    #KeepItOn

    Access Now’s STOP Project, in collaboration with the #KeepItOn coalition, has been monitoring and reporting on internet shutdowns across the globe. The #KeepItOn coalition has been fighting internet shutdowns with various creative approaches, including grassroots advocacy, direct policy-maker 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.

    Social media taxes

    There has been a growing trend, particularly in Africa, where states have been introducing, or considering introducing, taxes specifically for the use of social media. The 2019 Internet Health Report on Taxing Social Media in Africa found:

    “Governments have imposed these levies to raise public revenues, and also argue that they are protecting the local telecommunications sector from competition from internet companies from abroad. But in practice, the (intended or unintended) consequence has been to push more people offline, increase barriers to getting online, and vastly limit freedom of expression and access to information — as well as access to goods and services that are now online.” 

    The Web Foundation aptly noted that Africa is the continent with the highest financial barriers to internet access. An already largely inaccessible resource will only be compounded further with social media taxes, which will, in turn, deepen the digital divide and hinder people’s access. 

    In Uganda, the government imposed a new tax scheme for the daily use of mobile communications apps such as Facebook, Twitter, Instagram, and LinkedIn, as well as instant messaging and voice communication apps such as WhatsApp, Snapchat and Skype. The consequence of this tax has seen people being pushed offline. These taxes are a relatively new and concerning state practice that increases barriers to online access and severely limits access to information. 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 the space of three months following the imposition of the social media tax scheme. 

    Uganda is one of many African countries that are considering the imposition of social media taxes. Reporters Without Borders has noted with concern that Zambia and Benin are similarly seeking to introduce social media taxes.  However, despite these growing concerns, there have been notable successes in challenging this emergent threat.

    Don’t Tax My Megabytes

    The citizens of Benin recently 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 “TaxePaMesMo” (Don’t Tax My MegaBytes).  After a few weeks of concerted digital protest, the government repealed the tax.

    Internet Without Borders welcomes this victory and notes:

    “The mobilisation online, around the Hashtag #TaxePamesMo (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.”

    The introduction of social media taxes is a violation of the right to access information.  Unfortunately, it is a growing trend, and it is possible that more countries, particularly in Africa, will resort to social media taxes, either due to genuine economic need, or to restrict access and limit freedom of expression to disarm dissent.  However, it is expected that lawyers, CSOs and citizens will continue to push back against this threat.  The success of #TaxePaMesMo is indicative of innovative forms of digital protest aimed at challenging the introduction of these taxes.

    Registration of bloggers

    Bloggers the largely undefined group of people who write online entries, self-publish, might remain anonymous and might write informally, semi-professionally or professionally – fulfil an essential role in our contemporary society by disseminating information through the exercise of their right to freedom of expression.  Despite being an open-ended group, bloggers in many ways are akin to journalists, and given that a variety of individuals can exercise journalism, there should be legal standards that protect bloggers and journalists alike.  The United Nations General Comment 34 to the International Covenant on Civil and Political Rights (ICCPR) included bloggers in its assessment of journalism.  It stated that any restrictions on the operation of websites, blogs or any other internet-based systems are not compatible with the right to freedom of expression.

    Given the critical role bloggers play in disseminating information, they, like journalists, should operate in an enabling environment that promotes free expression and the sharing of opinions. 

    Unfortunately, a potential new trend is that of blogger registration. Freedom House reported that in 2018, Tanzania introduced new laws that require bloggers to pay licensing and registration fees.  This is an economically untenable situation given that Tanzania’s GDP per capita is approximately $1000 (USD), and the licence fee for bloggers is approximately $900 (USD).  Human Rights Watch has criticised the decision that makes blogging without a licence a criminal offence.  The licensing fee has introduced a severe barrier to freedom of expression and the dissemination of information.  The disproportionately high fees are pushing bloggers offline.  Of further concern are the criminal offences now attached to bloggers.  In 2019, the Daily Maverick reported that select bloggers in Zimbabwe were repeatedly detained and tortured, with one blogger, in particular, being charged with cybercrime offences but later acquitted.

    Growing threats to formal and informal modes of journalism are on the rise, and there is little indication, at this stage, that there are genuine efforts to address it.  Imposing burdensome obligations on bloggers and journalists are likely to become a standard practice unless states are compelled to respect and protect their international human rights obligations.

    Blocking and filtering of content

    Censorship has been on the rise over the past decade. The most prevalent is social media censorship, which is characterised by 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 that sieves through content, blocking individual pages that display specific characteristics.(6) Similar to internet shutdowns, but not as extreme, blocking and filtering may in some instances be 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.” Internet shutdowns do however differ slightly from blocking and filtering—the former results in complete loss of access, whereas the latter results in partial and influenced access.

    In the last decade, China has emerged with 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.(7) However, China is not alone in this regard. Several African governments have taken to censoring to control the flow of information, especially around critical times like elections periods. In a 2011 Report, the UN Special Rapporteur (UNSR) on the promotion and protection of the right to freedom of opinion and expression (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.”

    Freedom House noted that in Egypt, in 2018, blocking increased to unprecedented levels during the presidential elections. In 2019, NetBlocks reported that an estimated 34 000 internet domains supporting an opposition campaign were blocked in Egypt. In early 2019, Chad reached over 365 days of censored access to the internet following the recommendation to amend the Constitution to allow the President to remain in power until 2033.(8)

    This phenomenon is a threat not only to the public’s right to access information, but also the very core of democracy. It is expected that with increases in the number of people with access to the internet, resultant increases in censorship may be seen.

    Increased access and the need for digital literacy and safeguards

    Information and Communication Technologies (ICTs) in many ways fulfil the ever-important role of boosting economic growth and development. In doing so, they have the potential to assist with the achievement of socio-economic goals and aspirations. Resultantly, there ought to be appropriate access to ICTs, coupled with digital literacy, to ensure that these goals can be reached.

    Trends indicate an increase in access to ICTs. In 2017, the World Bank reported that Africa was “primed to continue its momentum in the ICT sector”, which would lead to increased industrialisation of the ICT sector and economic growth. Statista recorded that Africa has taken great strides over the last decade, with steady and sizeable growth resulting in an increase from 110 million internet users in 2010 to 522.81 million users in 2019, placing Africa as the region with the third-highest number of interest users. Statista further recorded that as of January 2020, the Republic of Congo and the Democratic Republic of Congo have ranked as the top two fastest growing online populations based on relative year-on-year user growth.

    Along with shifting digital frontiers, there is a corresponding and urgent need to ensure that digital literacy remains a priority. Digital literacy is critical to ensuring that the full potential of human and digital development is realised.

    Digital literacy in Africa

    UNICEF’s report on Raising Learning Outcomes: the opportunities and challenges of ICT for learning notes that Burkina Faso has recognised that ICTs play an increasingly important role in access to knowledge. However, due to weak infrastructure, low maintenance capacity and insufficient means to acquire devices, the digital literacy rates are not where they should be.

    The report further notes that due to limited finances in Namibia, “essential services in education” do not include ICTs. In Ghana, there is a growing market for technology-based products, even though these products are more accessible to private educational institutions.

    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.(9)

    While there are pockets of progress, the access, demand and literacy rate in Africa needs to be aligned, and there should be concerted efforts to ensure that the full spectrum of ICT opportunities is available to everyone. Access to the internet will undoubtedly continue to grow. Without appropriate digital literacy, online harms will persist and may increase, putting some of the most vulnerable members of our society at risk.

    The interplay between net neutrality and zero-rated content

    Net neutrality – the principle that seeks to ensure that access to content is open, free-flowing, fair, and equal – has the potential to be under threat by the principle of zero-rating, which aims to direct internet traffic. 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 our information society. In contrast, zero-rating has the potential to distort content consumption, as well as access to the market. There are levels to this debate, with some, such as multinational corporations, arguing that zero-rating can be a tool to facilitate universal access to the internet. Many digital rights activists, such as the EFF, are not swayed by the argument that some access is better than no access. They argue that zero-rating is a means for the new internet gatekeeps to centralise power and control access.

    The debate regarding net neutrality and zero-rating ebbs and flows depending on which states are for or against it at any point in time. During 2015 and 2016, the India-Facebook-Airtel controversy took centre stage, with Facebook and Airtel offering differential pricing for access to certain content and no-fee access to other content. Following public outcry and a rejection of Facebook’s alleged plan to provide universal access to the internet, the Indian Telecom Regulatory Authority announced that shaping users access to the internet would not be allowed. India has since adopted strong net neutrality regulations.(10)

    The United States has recently engaged this issue, which resulted in the 2019 Federal Communications Commission decision to repeal net neutrality laws.(11) While the repeal was upheld by the Federal Appeals Court in 2020, digital rights activists suggest that this might not be the end of the road for the net neutrality debate in the United States.(12)

    This debate is likely to continue with states changing course and multinational corporations finding new ways to provide access, on their terms. Developing and transitioning economies will remain at risk of zero-rating with pressure to accept some access rather than no access. This is an unfortunate trend that undermines the potential of developing and transitioning economies. Hopefully, the Indian example will shine a light on the need to have access that is not controlled by service providers who may have particular agendas or may use development as a guise to control access for people who are most in need of it.

    The rise in cybercrimes and cyber attacks

    Cybercrimes are becoming more sophisticated, more dangerous, and are in many ways developing more rapidly than their response mechanisms. Attacks on individual users, businesses, CSOs and states are becoming commonplace. It has been reported that 4.1 billion records were exposed to data breaches in the first half of 2019. Hackers are estimated to attack every 39 seconds, averaging over 2200 attacks per day. Further to this, there is a substantial economic concern with the rise of cybercrime costing an estimated $3 trillion (USD) by 2020.

    The World Economic Forum listed the following as the most pressing cybersecurity issues in 2019, which are expected to be on the rise in 2020:

    • Advanced phishing kits: Of notable concern is the increase in the availability of phishing kits, allowing people with basic skills to conduct phishing attacks.
    • Remote access attacks: These types of attacks are becoming more sophisticated, specifically targeting cryptocurrency.
    • Attacks via smartphones: Unsafe browsing is playing a significant role in the rising online fraud rate, with more than 60% of online fraud committed on mobile platforms.
    • Vulnerabilities in home automation and the Internet of Things: The Internet of Things industry is expected to grow by 7 billion devices in 2020.  There are concerns that insecure designs will create risks for devices, which will become targets not only for data collection but for attackers to launch tools, or DDos attacks.
    • Utilising artificial intelligence (AI): Developing AI for malicious purposes is a genuine threat, and can be used to avoid detection, amplify phishing attacks and better facilitate social engineering.

    While cybercrime itself poses a serious threat to human rights, the rise of oppressive and aggressive cybersecurity measures is also jeopardising the realisation of an array of rights. Cybersecurity was identified as an emerging global trend in 2014 and has since mushroomed into a booming industry.

    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.”(13) The intense and often vague legislative measures implemented to counteract cybercrime are arguably doing little to take fundamental human rights and freedoms into account, leaving internet users vulnerable to both the crime and the harsh response. It is expected that cybercrimes will continue to outpace cybersecurity measures. In response, states will likely continue to be reactive and adopt measures that are unlikely to accord with international human rights norms.

    Footnotes

    1. Access Now, ‘As Myanmar marks 101 days of internet shutdowns, the #KeepItOn coalition urges full restoration of internet access’ (2019) (accessible at: https://www.accessnow.org/as-myanmar-marks-101-days-of-internet-shutdowns-the-keepiton-coalition-urges-full-restoration-of-internet-access/). Back
    2. Al Jazeera, ‘Myanmar reimposes internet shutdown in Rakhine, Chin states’ (2020) (accessible https://www.aljazeera.com/news/2020/02/myanmar-reimposes-internet-shutdown-rakhine-chin-states-200204050805983.html). Back
    3. Access Now, ‘Zimbabwe orders a three-day, country-wide internet shutdown’ (2019) (accessible at: https://www.accessnow.org/zimbabwe-orders-a-three-day-country-wide-internet-shutdown/). Back
    4. BBC, ‘Why India shuts down the internet more than any other democracy’ (2019) (accessible at https://www.bbc.com/news/world-asia-india-50819905). Back
    5. Time, ‘India’s Supreme Court Orders a Review of Internet Shutdown in Kashmir. But For Now, It Continues’ (2020) (accessible at https://time.com/5762751/internet-kashmir-supreme-court/). Back
    6. ARTICLE 19, ‘Freedom of Expression Unfiltered: How blocking and filtering affect free speech’ (2016) (accessible at https://www.article19.org/data/files/medialibrary/38586/Blocking_and_filtering_final.pdf). Back
    7. Human Rights Watch, ‘China’s Global Threat to Human Rights’ (2019) (accessible at https://www.hrw.org/world-report/2020/china-global-threat-to-human-rights). Back
    8. CNN, ‘Chadians feel ‘anger, revolt’ as they struggle without internet for one year’ (2019) (accessible at https://edition.cnn.com/2019/04/24/africa/chad-internet-shutdown-intl/index.html). Back
    9. International Finance Cooperation, ‘Digital Skills in Sub-Saharan Africa’ (2019) (accessible at https://www.ifc.org/wps/wcm/connect/ed6362b3-aa34-42ac-ae9f-c739904951b1/Digital+Skills_Final_WEB_5-7-19.pdf?MOD=AJPERES). Back
    10. New York Times, ‘Facebook Loses a Battle in India Over Its Free Basics Program’ (2016) (accessible at https://www.nytimes.com/2016/02/09/business/facebook-loses-a-battle-in-india-over-its-free-basics-program.html); and BBC ‘India adopts ‘world’s strongest’ net neutrality norms’ (2018) (accessible at https://www.bbc.com/news/world-asia-india-44796436). Back
    11. Washington Post, ‘Appeals court ruling upholds FCC’s cancelling of net neutrality rules’ (2019) (accessible at https://www.washingtonpost.com/technology/2019/10/01/appeals-court-upholds-trump-administrations-cancelling-net-neutrality-rules/). Back
    12. EFF, ‘D.C. Circuit Offers Bad News, Good News on Net Neutrality: FCC Repeal Upheld, But States Can Fill the Gap’ (2019)(accessible at https://www.eff.org/deeplinks/2019/10/dc-circuit-offers-bad-news-good-news-net-neutrality-fcc-repeal-upheld-states-can). Back
    13. Open Global Rights, ‘Restricting cybersecurity, violating human rights: cybercrime laws in MENA region’ (2019) (accessible at https://www.openglobalrights.org/restricting-cybersecurity-violating-human-rights/).  See further Public Knowledge, ‘Cybersecurity and Human Rights’ (2019) (accessible at https://www.publicknowledge.org/cybersecurity-and-human-rights/). Back