Module 2: Restricting Access and Content
Overview of internet shutdowns
An internet shutdown typically involves the deliberate disruption of internet or electronic communications, to the extent that they become inaccessible or unusable. Internet shutdowns generally target a particular population or within a specific location with the objective of exerting control over the free flow of information. Internet shutdowns, which are sometimes referred to as a “blackout” or “kill switch”, include full and localised shutdowns, bandwidth throttling, and service-based blocking of two-way communication platforms.(1)
Internet shutdowns on the rise
Internet shutdowns are unfortunately on the rise: in 2021 the #KeepItOn coalition reported at least 182 incidents of internet shutdowns around the world compared to 76 in 2016.(2) These figures highlight the rise of this new trend in which governments seek to silence dissenting voices, control information and curb freedom of expression. Of additional concern is the protracted duration of the shutdowns. At the time of this module’s latest update, there was an ongoing shutdown in the Tigray region of Ethiopia approaching nearly two years; a shutdown in Pakistan’s Federally Administered Tribal Area lasted nearly four years between 2016 and 2021, seriously compromising the education, healthcare, and business sectors.(3)
Internet shutdowns are used by states to limit opposition and disarm dissent and are often used during critical periods such as elections or times of mass protest. They pose severe threats to people’s rights and are contrary to international human rights standards.
International and regional responses
Over the last decade, the exponential growth in access to the internet has led to the corresponding development of international norms and standards regarding the use of the internet and the various rights it invokes. In the context of internet shutdowns, the rights to freedom of expression, access to information, and association and assembly rights contained in articles 19 and 21 of the International Covenant on Civil and Political Rights (ICCPR) are primarily implicated.
“the Internet has become a key means by which individuals can exercise their right to freedom of opinion and expression, as guaranteed by article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”
In 2012, the UN Human Rights Council (UNHRC) unanimously adopted a Resolution to protect the free speech of individuals on the internet. This resolution was the first of its kind and notably called upon states to “promote and facilitate access to the Internet”. It affirmed that—
“the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights”.
In recent years there have been more explicit statements concerning internet shutdowns:
- In 2016, the UNHRC expressed deep concern regarding “measures aiming to or that intentionally prevent or disrupt access to or dissemination of information online, in violation of international human rights law.”
- In 2017, the UNSR reported that: “Internet and telecommunications shutdowns involve measures to intentionally prevent or disrupt access to or dissemination of information online in violation of human rights law”. The report explains further that shutdowns “ordered covertly or without an obvious legal basis violate the requirement of Article 19(3) of the [ICCPR] that restrictions be ‘provided by law”.
- In 2018, the UNHRC expressed its deep concern “at measures in violation of international human rights law that aim to or that intentionally prevent or disrupt access to or dissemination of information online.”
- In 2019, the UNHRC noted its deep concern with “the various forms of undue restriction of freedom of opinion and expression online, including where States have manipulated or suppressed online expression in violation of international law”.
- In 2019, the UNSR reiterated that internet shutdowns are clearly inconsistent with article 19(3) of the ICCPR.
- In 2020, the UNHRC strongly condemned the use of internet shutdowns “to intentionally and arbitrarily prevent or disrupt access to or dissemination of information online.”
- In June 2022, the UN High Commissioner for Human Rights presented a report to the UN General Assembly highlighting the severe human rights impacts of internet shutdowns, including the fact that they “very rarely meet the fundamental requirements of necessity and proportionality”, and providing a set of recommendations for ending shutdowns, including calling on states to refrain from the full range of internet shutdowns.
In an African context, the 2019 Declaration of Principles on Freedom of Expression in Africa provides that:
“States shall not interfere with the right of individuals to seek, receive and impart information through any means of communication and digital technologies, through measures such as the removal, blocking or filtering of content, unless such interference is justifiable and compatible with international human rights law and standards.
States shall not engage in or condone any disruption of access to the internet and other digital technologies for segments of the public or an entire population.”
The above standards make it clear that internet shutdowns result in rights violations, and these reports and resolutions are important for establishing the rights-based framework relating to internet shutdowns. The practicality of litigating against states requires a nuanced understanding of the international human rights standards of legality, necessity, and proportionality and when there can be reasonable and justifiable limitations on fundamental human rights, particularly the right to freedom of expression. This is addressed below.
Legality, necessity and proportionality
Central to litigating internet shutdowns is establishing that the measure violates the right to freedom of expression and access to information, among others, such as the right to health and education. As discussed above, internet shutdowns violate the full enjoyment of the right to freedom of expression. However, establishing this is not enough. The right to freedom of expression can only be limited when the limitation is provided by “law” and where “necessary” to ensure “respect of the rights or reputation of others” or for “the protection of national security or of public order (ordre public), or of public health or morals.”(4)
States often rely on “national security” or “public order” to justify internet shutdowns. When litigating the issue of internet shutdowns, it is important to conduct a thorough limitations analysis in order to illustrate to a court that a right has been infringed, and that the limitation does not meet the threshold of Article 19(3) of the ICCPR.
Note on the limitation of freedom of expression
Article 19(3) of ICCPR sets out the grounds upon which the right to seek, receive and impart information and ideas on the internet may be limited. The restriction must be:
- Provided by law.
- Be necessary for:
- Respect for the rights of others.
- The protection of national security or of public order (ordrepublic), or of public health or morals.
- These are understood as the “legitimate grounds for restrictions”.
The UNHRC, through General Comment 34, has given further scope to the understanding of Article 19(3):
The restrictions must be provided by law: (5)
- The law must be clear (be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly) and accessible, and apply equally to everyone.
- The law must also be consistent with international human rights law.
- It must provide sufficient guidance on remedies and procedures for challenging non-compliance with the law.
- It is for the state to demonstrate the legal basis for any restrictions imposed on freedom of expression.
Directions or instructions from state departments or actors are insufficient to meet this legality threshold.
The restriction must be necessary:
- It must respect the rights or reputations of others. The UNHRC explains that for example, it may be legitimate to restrict freedom of expression in order to protect the right to vote. The UNHRC cautions that restrictions must be constructed with care: while it may be permissible to protect voters from forms of expression that constitute intimidation or coercion, such restrictions must not impede political debate, including, for example, calls for the boycotting of a non-compulsory vote.
- It must be aimed at the protection of national security or of public order (ordre public), or of public health or morals. Here the UNHRC explains that restrictive laws used for the pursuit of national security cannot be used to suppress or withhold from the public information of legitimate public interest if it does not harm national security. Journalists, researchers, environmental activists, human rights defenders, or others cannot be prosecuted for having disseminated such information if it does not harm national security. Relying on the justification of national security to stifle advocacy and activism is prohibited and merely alleging the justification of national security is insufficient.
The UNHRC explains further that the above grounds must conform to the strict tests of necessity and proportionality:
- Restrictions must be “necessary” for a legitimate purpose.
- Restrictions must not be overbroad. The UNHRC emphasised that restrictive measures must conform to the principle of proportionality:
- They must be appropriate to achieve their protective function.
- They must be the least intrusive instrument amongst those which might achieve their protective function.
- They must be proportionate to the interest to be protected.
- The principle of proportionality must be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law.
Internet shutdowns are seldom proportionate, and are generally viewed as a “disproportionate restriction on the right to freedom of expression, and have serious repercussions for the protection of other human rights.”
If a state cannot fulfil these requirements, then the restriction amounts to an unjustifiable and disproportionate limitation of the right. Echoing this and responding to the internet shutdown crisis in Kashmir in 2019, UN Special Rapporteurs have stated that “[t]he shutdown of the internet and telecommunication networks, without justification from the Government, are inconsistent with the fundamental norms of necessity and proportionality.”
Recent examples of litigation relating to internet shutdowns
Despite these clear standards, states continue to claim that measures taken to restrict the internet are necessary and proportionate to ensure national security or public order, or both. Fortunately, there have been instances where courts have handed down decisions providing that these justifications do not warrant internet shutdowns and where the threat of litigation itself has proved successful.
In 2017, a case was brought before the Constitutional Council in Cameroon which challenged the state’s decision state to shut down the internet in the South West and North West of the country – the English-speaking regions – following language-related protests. Civil society actors filed a challenge demanding that the state restore access to the internet in these regions. After the filing of the challenge, access to the internet was restored without the need for a judicial determination.(6)
In 2018, Media Defence and Veritas Law filed a new challenge which sought to emphasise that the state’s actions in shutting down the internet were an infringement on the right to freedom of expression and a violation of international and regional human rights law.(7) The internet was ultimately restored, illustrating, as stated by Access Now that “simply filing the lawsuit can get results, like increased transparency and responsiveness from telcos or the state.”
In January 2019, an urgent chamber application was filed by Zimbabwe Lawyers for Human Rights (ZLHR) and the Media Institute of Southern Africa-Zimbabwe Chapter (MISA-Zimbabwe) challenging the ongoing internet shutdowns in Zimbabwe at that time. The High Court granted an interim order that the implicated mobile operator must immediately and unconditionally resume full services and thus ensure access to the internet. The Court’s ruling was mainly based on the absence of a legal provision enabling the shutdown.
Comments from the litigants
“It is now important that civil society, as MISA did, lobby parliament and the executive on digital rights, by pointing out how archaic Internet shutdowns are in trying to stop sharing information and that shutdowns do more harm to the country’s reputation than good.”
Papua and West Papua
In 2020, the Jakarta State Administrative Court (PTUN) ruled on an internet shutdown ordered by the Indonesian government in the areas of Papua and West Papua in 2019 in response to widespread protests in the region sparked by incidents of racial abuse and state violence.(8) The Indonesian government argued that the shutdown was necessary to prevent the spread of fake news during the protests. However, in the case filed by a group of Indonesian CSOs, the Court found that the shutdown violated the law and that the government had failed to prove that Indonesia was in a state of emergency that required authorities to shut down the internet. It further held that initiatives to address fake news should be dealt with under provisions in the Criminal Code or through the blocking of specific accounts, rather than shutting down internet access.(9)
A comprehensive case dealing with internet shutdowns is that of Bhasin v Union of India; Azad v Union of India. It stems from a 2019 disconnection of internet services in parts of Kashmir.
The petitioners approached the Supreme Court seeking, among other things:
- An order setting aside all orders, notifications, directions and / or circulars issued by the respondents under which any / all modes of communication including internet, mobile and fixed-line telecommunication services have been shut down or suspended or in any way made inaccessible or unavailable in any locality.
- An order directing the respondents to immediately restore all modes of communication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide for an enabling environment for the media to practise its profession.
The questions of law that arose for the Supreme Court to consider were:
- Whether the government could claim an exemption from producing all orders pertaining to the suspension of telecommunications services.
- Whether freedom of expression and freedom to practise any profession or to carry on any occupation, trade or business over the internet constituted part of the fundamental rights under the Constitution.
- Whether the government’s action of prohibiting internet access was lawful and valid.
- Whether the imposition of the relevant restrictions by the government was valid.
- Whether the freedom of the press of the petitioners was violated due to the restrictions.
In its ruling, the Supreme Court made some profound statements regarding freedom of expression and the intersection between law and technology:
“We need to distinguish between the internet as a tool and the freedom of expression through the internet. There is no dispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right, nor can it justify its denial.”
In addition, the Supreme Court conducted a thorough limitations analysis, noting that:
“It goes without saying that the Government is entitled to restrict the freedom of speech and expression guaranteed under Article 19(1)(a) if the need be so, in compliance with the requirements under Article 19(2). It is in this context, while the nation is facing such adversity, an abrasive statement with imminent threat may be restricted, if the same impinges upon the sovereignty and integrity of India. The question is one of extent rather than the existence of the power to restrict.”
The Supreme Court found that freedom of speech and expression and the freedom to practice any profession or carry on any trade, business, or occupation over the medium of the internet enjoys constitutional protection and any restriction upon such fundamental rights should be in consonance with the restrictions provided for in the Constitution, inclusive of the test of proportionality.
Ultimately, the Court issued a list of directions including a declaration that suspending internet services indefinitely is impermissible, and can be for a temporary duration only; suspending the internet in terms of the “Suspension Rules” must adhere to the principle of proportionality and must not extend beyond the necessary duration; any order suspending or restricting access to the internet is subject to judicial review; and the state was directed to review all orders suspending internet services.
Commentary – did the judgment go far enough?
The Software Freedom Law Centre, India (SFLC.In) welcomed the judgment but noted some concerns:
- The direction to review the suspension orders could be a futile exercise as the review committee is composed of members exclusively from the executive.
- The judgment did not give any immediate relief to the people in Kashmir.
Former Chief Justice, Justice Shah of the Delhi High Court stated, during the Fourth LC Jain Memorial Lecture, that the judgment is laudable in many respects, but went on further to state:
“After ruling that the suspension of communication services must adhere to the principles of necessity and proportionality, the Court failed to apply these principles to actually decide the legality of the communication shutdown in Kashmir.
Instead, it directed the fresh publication of all orders, with the Review Committee reviewing all these orders. The reliance on Lord Diplock’s aphorism “you must not use a steam hammer to crack a nut, if a nutcracker would do”, was, at least for the people of Kashmir, meaningless.”
Overall, this judgment has been widely welcomed. It provides a comprehensive discussion on the topic of internet shutdowns, and it is useful to future litigants who are faced with these issues. Although often facing the challenges of poorly capacitated court systems lacking independence, these and other cases – including in Sudan and Uganda – provide lessons on how to meaningfully effect change through litigation in domestic courts.
In 2017, the Togolese government enacted an internet shutdown in response to protests over President Faure Gnassingbé’s efforts to pursue a fourth term in power.
- Seven local CSOs, including Amnesty International Togo, and an individual blogger activist applied to the Community Court of Justice of the Economic Community of West African States (ECOWAS) arguing a violation of Article 9 of the African Charter on Human and Peoples’ Rights (African Charter) which protects freedom of expression, as well as that the shutdown prevented their ability to carry out their work and damaged their reputation and finances.(10)
- The government justified the shutdown in terms of national security, claiming that there was a spread of hate speech and incitement online which risked a civil war.
As described by the Global Freedom of Expression Database at Columbia University:
“The Court found that access to the internet is a “derivative right” as it “enhances the exercise of freedom of expression.” As such, internet access is “a right that requires protection of the law” and any interference with it “must be provided for by the law specifying the grounds for such interference.” [p. 11] As there was no national law upon which the right to internet access could be derogated from, the Court concluded that the internet was not shut down in accordance with the law and the Togolese government had violated Article 9 of the African Charter on Human and Peoples’ Rights. The Court subsequently ordered the Respondent State of Togo to take measures to guarantee the “non-occurrence” of a future similar situation, implement laws to meet their obligations with the right to freedom of expression and compensate each applicant to the sum of 2,000,000 CFA (approx. 3,500 USD).”
The Court also established that non-natural persons, including CSOs, can bring claims to protect their right to freedom of expression in the ECOWAS Court.(11)
In conjunction with litigation considerations, there are some other practical tips which may be of use, particularly in relation to capturing and preserving evidence during internet shutdowns. These tips can be useful for establishing a rights violation and pursuing litigation.
Tips to consider when litigating this issue
The Southern African Litigation Centre has published a guide on litigating internet shutdowns in Southern Africa which highlights the legal considerations for legal action on internet shutdowns in various courts in the region.
- The parties: consider the impact of the shutdown and if it is necessary to identify specific categories of applicants and respondents. Identify who is responsible for ordering the shutdown and who implemented it.
- The procedure and the relief: consider if the case requires urgent litigation and interdicts, injunctions or judicial reviews. Consider the type of precedent the case will set.
- The law: consider whether there are existing laws that prescribe blockage orders. If there are, consider whether the government has complied with them and consider if the laws themselves are in accordance with human rights standards.
- The rights: consider which rights were violated and consider responses to government justifications.
The growing number of shutdowns internationally and in Africa is of grave concern. Fortunately, there is a simultaneous growth of activism and litigation that is working towards curbing these continued rights violations. Until states refrain from blanket bans over access to the internet through shutdowns, there will be a continued need for strategic litigation, activism, and advocacy.