Overview of internet shutdowns

An internet shutdown typically involves the deliberate disruption of internet or electronic communications, to the extent that they become either partially or fully inaccessible or unusable. Internet shutdowns often target a particular population or a specific location with the objective of exerting control over the free flow of information in that area, but they have also sometimes affected entire countries. 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 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.

International guidance on this issue goes some time back. In 2011, the United Nations Special Rapporteur on Freedom of Expression (UNSR on FreeEx) reported to the United Nations General Assembly that:

“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.”(8)

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”.(9)

In recent years there have been more explicit statements concerning internet shutdowns:

In an African context, the 2019 Declaration of Principles on Freedom of Expression in Africa provides that:(19):

“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.”

African bodies have also explicitly expressed their condemnation of internet shutdowns:

• In 2019, the ACHPR’s Special Rapporteur on Freedom of Expression and Access to Information expressed concern about the continuing trend of internet shutdowns in Africa and noted that shutdowns violate the right to freedom of expression and access to information contrary to Article 9 of the African Charter on Human and People’s Rights.(20)
• In 2020, the ACHPR Special Rapporteur again expressed his concern about internet shutdowns in Africa, stressing the importance of internet access for containing the spread of COVID-19 and enabling journalists to verify the information and update the public on measures governments were taking to deal with the virus.(21)
• In 2023 the ACHPR Special Rapporteur, together with other regional and international Special Rapporteurs, issued a joint declaration on Media Freedom and Democracy in which they implore States to refrain from imposing internet shutdowns and thereby prevent access to information, undermining journalistic work, and abet the perpetration of human rights violations.(22)

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.

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, since freedom of expression is not an absolute right, it may be limited in certain circumstances, but only when, according to international human rights law, the limitation is “provided by law” and “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.”(23)

States often rely on this exception of “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.

IIf 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, several UN Special Rapporteurs recorded 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.”(27)

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 in which courts have handed down decisions providing that these justifications do not warrant internet shutdowns and where the threat of litigation itself has proved successful.

Domestic Courts

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 majority English-speaking regions — following language-related protests.(28) Civil society actors filed a challenge demanding that the state restore access to the internet in these regions,(29) after which access to the internet was restored without the need for a judicial determination.(30) As stated by Access Now, this showed that “simply filing the lawsuit can get results, like increased transparency and responsiveness from telcos or the state.”(31)

In a subsequent legal challenge brought before the Supreme Court of Cameroon, sitting as the Constitutional Council of Cameroon, seeking a declaratory judgment on the internet shutdown, the court dismissed the application for lack of locus standi, noting that the Constitution does not empower civil society organisations to file matters before it.(32)

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, which were reportedly imposed in response to mass political protests and to provide cover for security forces to implement a violent crackdown.(33) 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.(34) The Court’s ruling was mainly based on the absence of a legal provision enabling the shutdown.

While this resulted in the eventual restoration of access, internet shutdowns in Zimbabwe have persisted in the intervening years. For example, there were internet shutdowns again in 2022(35) and once more in 2023 ahead of elections in the country.(36)

In August 2021, internet access was shut down during the Zambian general elections. The incumbent president ostensibly conducted this shutdown “in an effort to maintain peace and during the voting period.” This led a Zambian NGO, Chapter One Foundation, to approach the High Court to review the Zambian Information and Communications Technology Authority’s decision to interrupt internet access. (37)

The parties ultimately came to an agreement, which was made an order of court by the High Court, whereby the Zambian Information and Communications Technology Authority:

“would not do any act or make any omission outside of their legal regulatory authority which may inhibit or interrupt the flow of an uninhibited access to information on all available telecommunication platforms under their control and/or regulation where the interest of consumers and their consumer and constitutional rights are threatened.”

Further, and importantly for government accountability, the Information and Communications Technology Authority agreed to inform the public as to the cause of any internet disruption within 36 hours of the event.

After an internet shutdown in the country in 2019, a Sudanese lawyer launched a legal challenge that successfully resulted in an order for the service provider to restore his access.(38) However, the order did not extend beyond his single SIM card due to his filing the suit in his personal capacity as a customer. This was then followed by a class action suit which eventually resulted in the court ordering multiple service providers to restore access for all customers, as well as provide apologies to their customers.

In a subsequent lawsuit brought in 2021 against another shutdown, the Sudanese Consumer Protection Organisation succeeded in securing an order for all internet service providers (ISPs) to restore access for all subscribers.(39) When the Telecommunication and Post Regulatory Authority (TPRA) insisted on maintaining the shutdown despite the court order on the grounds of national security, the court issued a warrant of arrest for the chief executives of the ISPs which finally resulted in access being restored.

Unfortunately, some domestic legal challenges have not proven successful. In 2021 the Ugandan Constitutional Court dismissed an application challenging the government’s disruption of internet as well as mobile money services in the country during the 2016 general elections. The court held that the shutdown was permissible by law and involved no constitutional issues.(40)

Regional Courts

In 2021, the federal government suspended social media site Twitter after it removed content posted by President Muhammadu Buhari which threatened to punish regional secessionists.(41) The ban was in place for seven months before Twitter agreed to several of the government’s demands, including opening a local office in Nigeria.

The ban was subsequently challenged in the ECOWAS Court in a case brought by the Socio-Economic Rights and Accountability Project (SERAP) and joined with other similar cases. The Court held that access to Twitter was a “derivative right” that was “complementary to the enjoyment of the right to freedom of expression.” As such, any derogation from that right must be lawfully justified by either an existing law or an order of the Court, something which the government had failed to show.

Consequently, the Court held that the ban violated the right to freedom of expression, access to information and the media as set out in Article 9 of the African Charter on Human and People’s Rights (ACHPR) and Article 19 of the ICCPR. It further ordered the government to prevent such a repetition. Media Defence and Mojirayo Ogunlana-Nkanga represented the applicants.(42)

In 2020, the Guinean government disrupted access to the internet and banned demonstrations as well as arrested demonstrators, journalists, and civil society activists amidst protests concerning the President’s amendment of the Constitution that would effectively allow him to remain in power. Consequently, an NGO brought a case to the ECOWAS Court on the basis that the government had violated their right to freedom of expression and right to information.(43)

The Applicants argued that the government’s actions in shutting down the internet violated Article 9 of the African Charter, Paragraph 19 of the ICCPR, and Paragraph 66 of the ECOWAS Revised Treaty.

The Court noted that the aim of the right to information is to enable citizens to participate usefully in the democratic process and in decisions concerning their future. Access to information is considered the foundation of democracy. It held that the right to information is an extension of freedom of the press and freedom of expression and that any unjustified measure which aims to suspend or restrict free access to information constitutes a violation of the right to information. As such, the government’s actions in interrupting access to the internet without justification constituted a violation of the right to information.

Similarly, the Court held that the right to freedom of expression is an essential right which guarantees the exercise of freedom of the press and is a necessary and indispensable element of any democratic society. Importantly, the Court found that states not only have an obligation to refrain from interfering with this right, but they also must adopt all necessary measures to give effect to it. It emphasised that any restriction or limitation to the right to freedom of expression is only justified if it is provided by law, serves a legitimate interest, is necessary and proportionate, and respects the rights of others, the collective security, morality, and the common interest. The government did not meet these requirements and, as such, they were found to have violated the Applicants’ right to freedom of expression. Guinea was ordered to take all necessary measures to ensure that these violations do not occur in the future and to adopt and implement laws, regulations, and safeguards to fulfil its obligations regarding the right to freedom of expression under international human rights instruments.

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 ECOWAS Court arguing a violation of Article 9 of the African Charter, as well as that the shutdown prevented their ability to carry out their work and damaged their reputation and finances.(44)

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.(45)

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, and progress has been made in recent years in developing domestic and regional jurisprudence condemning such shutdowns, as well as in the publication of international law instruments and guidance that can be referenced to show the firm international human rights law position on the subject. However, 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.

More Resources on Internet Shutdowns