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, including internet shutdowns, blocking and filtering of content, social media taxes, censorship, and distributed denial of service (DDoS) attacks.
Dozens of countries have been affected by internet shutdowns in recent years. In 2021, Access Now and the #KeepItOn coalition documented at least 182 internet shutdowns in 34 countries around the world.(1) Myanmar, Zimbabwe, India, and the Tigray region of Ethiopia 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 telecoms network insisted that the internet shutdowns were for the benefit of the people.(2) There continued to be a series of prolonged internet shutdowns in various regions of Myanmar in 2021 and 2022, with the longest nationwide outage reported as being nearly 2.5 months.(3) The start of 2020 saw another spate of internet shutdowns in two of Myanmar’s conflict-ridden states.(4)
- 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.(5)
- India had nearly 100 internet shutdowns during 2019, including the most protracted recorded shutdown in history in Kashmir/(6) In 2020, the Supreme Court in India ruled that indefinite internet shutdowns violated freedom of speech and expression, ordering the government to publish reasons, including the duration of the shutdown, each time it wishes to implement this action in future.(7)
- 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 nearly two years, with the government arguing the measures are necessary to curb violence and critics accusing authorities of using the internet as a weapon of war.(8)
In a positive legal development, the Community Court of Justice of the Economic Community of West African States (ECOWAS) held in 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.(9) Because 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 (the African Charter).
It appears that internet shutdowns are increasingly a tool that governments are willing to use to control criticism and protest, especially at times of civil unrest or around election periods. 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 actions that will ensure the protection of people’s rights in the digital age.
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.
Blocking and filtering of content
Censorship has been on the rise over the past decade. A new and increasingly prevalent form 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.(10) Although considered less extreme than internet shutdowns or other measures that fully limit access, such mechanisms are deeply concerning also 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 that 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.”
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.(11) However, China is not alone in this regard. Several governments have taken to censoring in order to control the flow of information, especially around critical times like election 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, internet 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 a recommendation to amend the Constitution to allow the President to remain in power until 2033.(12)
- 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.(13) In a foundational case for social media blocking decided in July 2022, the ECOWAS Community Court of Justice held that the seven-month ban was unlawful and violated the freedom of expression of the people of Nigeria.(14)
This phenomenon is a threat not only to the public’s right to access information but also to the very core of democracy. 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.
Jurisprudence in the ECtHR on blocking
In the 2021 case of OOO Flavus v Russia (2020), the European Court of Human Rights (ECtHR) held that the indiscriminate blocking of entire online news websites without giving notice of the specific offending material was a breach of the right to freedom of expression.
Likewise, the case of Vladimir Kharitonov v Russia (2020) also involved the wholesale blocking of a website, this time seemingly in error because it shared an IP address with another website sharing illegal content. The ECtHR held that the blocking orders effect on co-hosted websites was far beyond the illegal content actually targeted and was, therefore, a violation of the right to freedom of expression.
Social media taxes
A number of 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, increases barriers to getting online, and limits on freedom of expression and access to information — as well as to goods and services.(15)
The Web Foundation has noted that Africa is the continent with the highest financial barriers to internet access. Social media taxes add yet another barrier to accessing a resource that is already inaccessible to many people, which serves to deepen the digital divide and hinder people’s rights.
In Uganda, the government imposed a new tax scheme for the daily use of mobile communications apps such as Facebook, Twitter, Instagram, LinkedIn, WhatsApp, Snapchat and Skype. 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 social media tax scheme’s rollout, severely limiting freedom of expression and access to information. Research also found that the tax lowered domestic tax revenue.(16)
Although Uganda subsequently abandoned the OTT tax (but later introduced a new 12% tax on internet data) it is only one of many African countries that are considering imposing taxes on the use of social media. Tanzania, Mozambique and Benin have also attempted to initiate such initiatives, along with a host of other African countries.(17) 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.”
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 #TaxePasMesMo is indicative of innovative forms of digital protest aimed at challenging the introduction of restrictions on freedom of expression.
Registration of bloggers
Bloggers – a 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 play a similar role to journalists in enabling informed discussion and access to information, and many international standards and guidelines on freedom of expression online provide legal standards that protect bloggers and journalists alike.(18)
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, the rising trend of blogger registration threatens that goal:
- In 2018, Tanzania introduced new laws that require bloggers to pay licensing and registration fees. The fact that Tanzania’s GDP per capita is approximately $1 000 (USD), and the licence fee for bloggers is approximately $900 (USD) raises serious questions about the economic feasibility of this initiative. The law makes blogging without a license a criminal offence, which drew 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.
- 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 sharing of information by licensed persons. The Bill would require the registration of bloggers and allow the Communications Authority to develop a bloggers’ code of conduct.
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. Resultantly, there ought to be appropriate access to ICTs, coupled with digital literacy, to ensure that these goals can be reached.
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 600 million African internet users in 2021 – representing exponential growth in the previous decade.
These shifting digital frontiers bring a corresponding need to ensure support for digital literacy and inclusion. 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
Afrobarometer has found that 55% of adults in Africa are 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. 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.
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.(19)
While there are pockets of progress, it is vital that improvements in internet access and increases in demand are 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.
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. It has been flagged that net neutrality may be under threat by the increasingly popular initiative 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.
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. 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. Zero-rating has been flagged as one example of such a control measure. 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, 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.
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 announced that shaping users’ access to the internet would not be allowed. India has since adopted strong net neutrality regulations.(20) The net neutrality debate is continuing in the US and around the world, illustrating the difficult challenges involved in finding a balance between enabling greater access to content while ensuring that it remains equal and free.
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. 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.
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 by powerful international multinationals. The experience in India has highlighted the need to ensure 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: it has been reported that more than 61% of companies in Africa were affected by ransomware attacks in 2020 alone, with attacks happening every 11 seconds in a context in which countries are reported to be especially ill-prepared and vulnerable. Further to this, there is a substantial economic concern with cybercrime reported to have reduced GDP within Africa by more than 10%, at a cost of an estimated 4.12 billion USD, in 2021.
Interpol has identified the following as the top five cyberthreats in Africa at present:
- Online scams: fake emails or text messages claiming to be from a legitimate source that are used to trick individuals into revealing personal or financial information;
- Digital extortion: victims being tricked into sharing intimate images which are used for blackmail;
- Business email compromise: criminals hacking into email systems to gain information about corporate payment systems, then deceive company employees into transferring money into their bank account;
- Ransomware: cybercriminals blocking the computer systems of hospitals and public institutions, then demanding money to restore functionality;
- Botnets: networks of compromised machines being used as a tool to automate large-scale cyberattacks.
While cybercrime itself poses a serious threat to human rights, the corresponding rise of oppressive and aggressive cybercrime and cybersecurity measures is also jeopardising the realisation of an array of digital rights.
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.(21) 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.