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 they become inaccessible or unusable, generally targeting 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 are on the rise—in 2019 reported incidents of internet shutdowns reached alarming numbers across the world highlighting the rise of this new trend in which governments seek to silence dissenting voices, control information and curb freedom of expression. Access Now reported 75 instances of internet shutdowns in 2016. This grew to 106 in 2017 and 196 in 2018. Access Now has further reported that in the first six months of 2019, there had already been 128 documented shutdowns. Of additional concern is the protracted duration of the shutdowns, with the shutdown in Kashmir in India lasting over 150 days, making it the most protracted recorded internet shutdown in a democracy.
Internet shutdowns are being used by states to limit opposition and disarm dissent and are often used during critical periods such as elections or protests. 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 use and prevalence of access to the internet has grown exponentially, and with this rise, there has been 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.
In a 2011 Report, the United Nations Special Rapporteur on Freedom of Expression (UNSR 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.”
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 the last five 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 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 an African context, the Special Rapporteur on Freedom of Expression and Access to Information in Africa has released an updated draft of the Declaration of Principles on Freedom of Expression in Africa which 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 removing, blocking and filtering of content, unless such interference is justifiable and compatible with international human rights law.
States shall not engage in the wholesale 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 while 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 it violates the right to freedom of expression and access to information, among others. 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”.
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 (ordre public), 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:
- 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.
The UNSR 2019 Report explains:
“The restriction must be provided by laws that are precise, public and transparent; it must avoid providing authorities with unbounded discretion, and appropriate notice must be given to those whose speech is being regulated. Rules should be subject to public comment and regular legislative or administrative processes. Procedural safeguards, especially those guaranteed by independent courts or tribunals, should protect rights”
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.
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.
“Fundamentally, any restriction or limitation must not undermine or jeopardise the right to freedom of expression itself. Additionally, restrictions must be consistent with other rights found in the ICCPR and the fundamental principles found in the UDHR.”(2)
As indicated, any restrictions imposed on freedom of expression, including internet shutdowns, must be provided by law and must be necessary, clear and unambiguous and accessible. In this regard:
- Internet shutdowns may only be authorised by law. Directions or instructions from state departments or actors are insufficient to meet this legality threshold.
- The restriction must be necessary. 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 restrictions must also be proportionate to the purpose they seek to achieve. 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.”(3) For example, internet shutdowns disproportionately violate the rights of both a protester and a shop owner seeking to transact with mobile money. It is highly unlikely that a limitations analysis is equally applicable to these two people.
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, 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 decision of the 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, and keep it on. After the filing of the challenge, access to the internet was restored without the need for a judicial determination.
Comments from the litigants
Media Defence along with Veritas Law were the applicants challenging the internet shut down. Media Defence stated:
“The case that has been brought highlights that open and accessible internet communications are essential to ensuring the right to freedom of expression. Disruption of online services, whether through website blocking or internet shutdowns, amounts to a serious violation of that fundamental right. The government of Cameroon is obliged under domestic and international legal obligations to protect freedom of expression, including ensuring that it remains accessible and that people are able to use it freely and without interference.”
In 2018, a renewed challenge was filed by Media Defence and Veritas Law which sought to emphasise that that state’s actions in shutting down the internet was an infringement on the right to freedom of expression and a violation of international and regional human rights law.(4) The internet was ultimately restored, illustrating, as stated by Access Now “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 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.
It is imperative that free speech organisations have awareness campaigns, where they target influencers and community and thought leaders with a message that digital rights are as sacrosanct as the other rights in the constitution and the government should do all within its power to ensure that all freedoms are honoured.”
The most recent and comprehensive case dealing with internet shutdowns is that of Bhasin v Union of India; Azad v Union of India. In 2019, internet services were disconnected in parts of Kashmir.
The petitioners approached the Supreme Court seeking, amongst 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 were 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:
“Law and technology seldom mix like oil and water. There is a consistent criticism that the development of technology is not met by equivalent movement in the law. In this context, we need to note that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society.
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, a list of directions was issued by the Supreme Court, 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:
“Unfortunately, despite these observations, the Supreme Court failed to actually decide the matter. The purported reason seems to be that it did not have all the orders in front of it, and the situation was changing on the ground daily. However, this reasoning seems tenuous, when we consider that a few sample shut down orders were placed before it (with detailed arguments being made about their unconstitutionality), and the Court could have easily directed the government to file the remaining orders.
While the reliance on Lon Fuller’s famous statement that “there can be no greater legal monstrosity than a secret statute” is praiseworthy, it did not result in any practical benefit, given that the government was effectively allowed to take advantage of its own wrong of not publishing all the orders or submitting it before the Supreme Court.
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. It evinces that change can be effected through litigation.
In conjunction with litigation considerations, there are some other practical tips which may be of use, particularly in relation to capturing and preserving video 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 recently prepared a report on navigating litigation during internet shutdowns in Southern Africa which highlights the legal considerations relevant for challenging internet shutdowns in 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 for 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.
Tips for documenting internet shutdowns
Witness has released a blog series with practical tips for documenting internet shutdowns:
- Prepare your device: learn about setting your phone up for offline documentation. This can include learning how to encrypt your device, ensuring that your phone has appropriate security settings and installing apps when there is no internet.
- Understand what happens to the content that you capture: learn about identifying which apps can and should be used to in the event of an internet shutdown. It is helpful to know who the app developer is, where your data will be stored, and whether meta‑data is captured when there is no access to the internet. Learn about backing up your phone’s media without the internet or a computer; this is an important safeguard against accidental deletion, corrupted data or if a device is confiscated.
- Maintain verifiable media during an internet shutdown: learn about ways to ensure that your documentation can be verified and corroborated given that you might only be able to upload it at a later stage. This can include capturing identifying details (landmarks, street signs, newspapers that illustrate the date), including a description of the meta-data and keeping backups.
- Share and communicate content: learn about some methods and approaches for offline sharing and communication. This can include sharing files via Bluetooth Wifi Direct, or Near Field Communication, using a wireless hard drive or flash drive and using peer-to-peer messaging apps.
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 in access to the internet through shutdowns, strategic litigation and activism should persist and continue to grow and should be coupled with appropriate advocacy strategies.