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    Restricting Freedom of Speech Online

    Module 3: Criminalisation of Online Speech

    As a result of the dramatic changes in the spread of information occasioned by the internet, there has been a proliferation of attempts to address issues relating to terrorism and national security, cybercrimes, and the spreading of disinformation online. Many of these attempts are, to varying degrees, in conflict with the right to freedom of expression.(1) As discussed above, although the right to freedom of expression is a fundamental human right, it is not absolute. As with most rights, freedom of expression may be lawfully restricted where the restrictions are reasonable and justifiable in an open and democratic society. However, as confirmed in General Comment 34 and Principle 9 of the African Declaration,(2) the restrictions imposed by states should not put the right to freedom of expression in jeopardy.

    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. Namely, the restriction must be:

    • Provided by law.
    • Necessary for respect for the rights of others, and for the protection of national security or of public order, or of public health or morals.

    It is important to note that articles 19(3) and 20 of the ICCPR are compatible, and the prohibited grounds listed in article 20 can also be restricted in terms of article 19(3) and must also pass the three-stage test. It is further necessary to note that within the context of article 20, there is a need to recognise the distinction between protected and unprotected speech, and between what is prohibited and what is discriminatory, derogatory, and demeaning discourse. Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) also provides that certain forms of expression are prohibited and punishable by law. These include:

    • Dissemination of ideas based on racial superiority or hatred;
    • Incitement to racial discrimination;
    • Acts or incitement of violence against any race or group of persons of another colour or ethnic origin of racially motivated violence; and
    • The provision of assistance, including of a financial nature, to racist activities.

    Three-stage test for the justifiable criminalisation of online speech

    To determine whether a limitation of the right to freedom of expression is justifiable, a three‑stage test must, therefore, be applied in which it must be established that the limitation is:

    • Provided by law;
    • Pursues a legitimate aim; and
    • Necessary for a legitimate purpose.(3)  

    The first limb (that the restriction is provided for by law) is relatively straightforward in relation to the criminalisation of online speech. The legislation must be clear, accessible, apply equally to everyone and be consistent with international human rights norms. Despite this, governments continue to enact laws that are vague, and which give themselves wide-ranging powers, including the power to decide what constitutes a legitimate purpose to restrict freedom of expression. On counter-terrorism measures, General Comment 34 provides that any offences relating to the encouragement of terrorism or extremist activity, or to the praising, glorifying, or justifying of terrorism, should be clearly defined to ensure that they do not lead to unnecessary or disproportionate interferences with freedom of expression. Excessive restrictions on access to information must also be avoided.

    The second limb (that it pursues a legitimate aim) is more complicated. In the current digital and political climate, the criminalisation of online speech is commonly used for political or other illegitimate purposes. Although there are legitimate grounds to restrict freedom of expression on the basis of national security, it is frequently subject to abuse. The African Declaration states that a limitation serves a legitimate aim where it is to preserve respect for the rights or reputations of others or to protect national security, public order, or public health, noting also that national security grounds require a real risk of harm and a close causal link between the risk of harm and the expression.(4)

    The third limb requires an assessment of whether the restriction is necessary, where legislation provides for restricting freedom of expression for the legitimate purposes of protecting national security, countering terrorism, ensuring public order, or respecting the rights of others. In respect of necessity and proportionality, a 2019 Report of the UNSR on FreeEx notes that “restrictions must be demonstrated by the state as necessary to protect a legitimate interest and to be the least restrictive means to achieve the purported aim.”(5) A 2018 UNESCO report also explains that this leg of the test can also cause controversy when national security concerns are cited by states.(6) States are often quick to justify restrictions without fully considering the principle of necessity and whether less restrictive means are available. With new online threats, states are also becoming more restrictive, often in violation of the above test.

    The different legitimate aims and the potential concerns that arise are discussed below.

    National security

    Citing national security concerns as a justification for restricting freedom of expression has been a common trend in SSA, and other regions of the world, for some time.(7) Several sets of soft law principles have been developed to provide guidance on this commonly misused ground of justification. For example, the 1985 Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR define a legitimate national security interest as one that aims “to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.”(8) The Siracusa Principles further provide that a national security limitation “cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order” and “cannot be used as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exist adequate safeguards and effective remedies against abuse.”(9)

    The Johannesburg Principles on National Security, Freedom of Expression and Access to Information were drawn up in 1996 by a group of experts in international law, national security, and human rights.(10) The principles state that in order for expression to be punished as a threat to national security, a government must show that:

    • The expression is intended to incite imminent violence.
    • It is likely to incite such violence.
    • There is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

    The Johannesburg Principles further provide that punishment (for disclosure of information) based on national security grounds is prohibited if the disclosure does not actually cause harm and is not likely to harm a legitimate national security interest.

    The 2019 Declaration of the ACHPR further provides that “[f]reedom of expression shall not be restricted on public order or national security grounds unless there is a real risk of harm to a legitimate interest and there is a close causal link between the risk of harm and the expression.”(11)

    Case note: Restricting access to online content through an internet shutdown

    While not relating directly to the criminalisation of online speech, Amnesty International Togo v The Togolese Republic provides valuable insight into the reasoning behind a foundational decision by the ECOWAS Court relating to restricting access to online content through an internet shutdown, particularly regarding a national security justification and the requirement that a limitation of freedom of expression be provided for in law.(12)

    In 2017, political protests broke out in Togo around presidential term limits in the country. The government implemented a full internet shutdown in response over two periods in September 2017. A group of civil society organisations instituted proceedings in the ECOWAS Court alleging that the shutdown violated the right to freedom of expression in violation of article 25 of the Togolese Constitution and article 9 of the African Charter, in addition to violating their rights to work.

    The government argued that the shutdown was necessary to protect national security, claiming that the spread of hate speech and incitement online risked the country sliding into “civil war.” The Court held that while access to the internet was not a direct right, it is a “derivative right” in that it enhances the exercise of freedom of expression, making it an “integral part” of the right.

    While recognising that national security can, in certain circumstances, justify an interference with the right to freedom of expression, the Court raised the requirement that any limitation must be in accordance with the law, noting that no national legislation provided the means through which an internet shutdown could be implemented. As a result, it held that the shutdown was a violation of the right to freedom of expression and directed Togo to take “all necessary measures” to prevent the re-occurrence of such a situation, including by enacting laws to meet the state’s obligations under international law.

    In the case of Director General of the Namibian Central Intelligence Service v Haufiku (2019) national security was dismissed as a legitimate aim to stifle freedom of expression.(13)

    Namibia’s Supreme Court upheld a prior High Court decision that denied the government’s request to prohibit the publication of a news article on national security grounds, finding that the government had failed to provide evidence of the national security threat.

    Case note: Restrictions must be necessary, serve a legitimate interest and be provided for by law

    In the case of Good v Republic of Botswana (2010), Mr Good, a political studies professor at the University of Botswana, was declared an undesirable inhabitant following the publication of a co-authored article which was critical of Botswana’s presidential succession.(14)

    Good was deported without reason and was not provided with an opportunity to challenge the decision. After unsuccessfully exhausting all internal remedies, Good approached the ACHPR, where he alleged that his right to be heard, his right to freedom of expression, his right to freedom of movement and his right to family life, all contained in the African Charter, had been violated.

    In response to the allegation regarding the restriction of Good’s right to freedom of movement, the Botswanan government relied on national security as a justification, arguing that the ACHPR does not have competency over such issues as “States must be left alone and allowed to deal with matters of peace and national security.” The Botswanan government did not address the alleged restriction on freedom of expression, and Good argued that it failed to illustrate the nature of the so-called national security threat posed and why the deportation could be justified as proportionate in severity and intensity to the publication of the academic paper.

    Despite the lack of a full response from the state, the ACHPR analysed the alleged infringement and found that there is international consensus on the need to restrict freedom of expression for national security, but such a restriction must be necessary, serve a legitimate interest and be provided for by law. The ACHPR went on to note that notwithstanding the fact that:

    “in the African Charter the grounds of limitation to freedom of expression are not expressly provided as in the other international and regional human rights treaties, the phrase ‘within the law’ under Article 9(2) provides a leeway to cautiously fit in legitimate and justifiable individual, collective, and national interests as grounds of limitation.”

    When conducting the limitations analysis, the ACHPR emphasised that a “higher degree of tolerance is expected when it is a political speech, and an even higher threshold is required when it is directed towards the government and government officials.” The ACHPR found that there was nothing in the article co-authored by Good that could potentially create instability, unrest, or violence in the country; rather, it was merely the expression of opinions and views and did not amount to defamatory, disparaging, or inflammatory expression.

    Ultimately, the ACHPR found that:

    “The action of the Respondent State was unnecessary, disproportionate, and incompatible with the practices of democratic societies, international human rights norms, and the African Charter in particular. The expulsion of a non‑national legal resident in a country, for simply expressing their views, especially within the course of their profession, is a flagrant violation of Article 9(2) of the Charter.”

    As evinced in these cases, there are times when states will rely on national security when it is in fact not a legitimate aim. In such instances, courts should be quick to find the distinction between legitimate threats and critical expression.

    Counter-terrorism

    Terrorism and extremism, which are largely undefined and often misused terms, are frequently the basis for states to invoke restrictive measures on online content. International human rights law provides extensive guidance for states on how to balance the real need to respond to terrorism with the fundamental right to freedom of expression.

    The 2015 Joint Declaration on Freedom of Expression and Responses to Conflict Situations by several regional mandate holders on Freedom of Expression and the UNSR on FreeEx provides that:

    “States should refrain from applying restrictions relating to ‘terrorism’ in an unduly broad manner. Criminal responsibility for expression relating to terrorism should be limited to those who incite others to terrorism; vague concepts such as glorifying’, ‘justifying’ or ‘encouraging’ terrorism should not be used.”

    This was subsequently followed by the 2016 Joint Declaration on Freedom of Expression and Countering Violent Extremism by the same mandate holders which noted that:

    “Everyone has the right to seek, receive and impart information and ideas of all kinds, especially on matters of public concern, including issues relating to violence and terrorism, as well as to comment on and criticise the manner in which States and politicians respond to these phenomena.”

    It further provides that states are obliged to ensure that there is an enabling environment for the media to keep society informed, “particularly in times of heightened social or political tensions.” This point is also emphasised in General Comment No 34 on the ICCPR, which states that the media plays an important role in informing the public about acts of terrorism and that it should be able to perform its legitimate functions and duties in this regard without hindrance.(15)

    At a minimum, if there is to be a limitation of access to the internet or to content online on the grounds of anti-terrorism, there should be transparency regarding the laws, policies, and practices relied upon, clear definitions of terms such as ‘national security’ and ‘terrorism,’ and independent and impartial oversight being exercised.

    There is also a general presumption in international law that prior restraint — restricting access to content before it has been published — is unnecessary and disproportionate. Although there may be a strong argument for the need to step in to stop the dissemination of information prior to the publication of content relating to terrorism, the courts have stressed that prior restraint can only be allowed in exceptional circumstances and must be robustly justified.(16)

    Public order offences

    The term ‘public order’ can have a wide and vague meaning, but generally refers to a general sense of peace in which members of society broadly comply with the law of the land.

    Public order offences can be developed and implemented to provide for legitimate aims, especially in the context of security forces. This means that laws which allow security forces to limit free speech to protect public order may be legitimate, as long as they comply with the requirements listed above. This legitimate aim is one that should not be abused due to the significant impact it can have on the people affected by the restriction on freedom of speech.

    As a concept, ‘public order’ is closely related to that of ‘national security’ and often conflated by states in justifying restrictions on accessing certain content or platforms. This is particularly evident in the recent proliferation of internet shutdowns during crucial election periods.(17) These acts are usually commissioned under the guise of maintaining public order, whereas they may, in reality, constitute an effort by states to silence dissent. The consequences of internet shutdowns are that the public’s right to access information, which may be crucial at a particular time, is violated. For more on internet shutdowns, see Advanced Module 2 of this series on Restricting Access and Content.

    Case note: Nigeria suspended the operations of Twitter

    The SERAP v the Federal Republic of Nigeria (2022) case in the ECOWAS Court dealt with the Nigerian government’s response to Twitter’s (now X’s) removal of content tweeted by the President from its platform for violation of its rules.(18) Nigeria suspended the operations of Twitter arguing that its ongoing operations constituted threats to the stability of Nigeria and that “Twitter is undermining Nigeria’s corporate existence” by allowing content that referred to separatist politics.  

    The ECOWAS Court emphasised the role of social media platforms such as Twitter as enablers of the rights to freedom of expression and access to information and held that the suspension was not made under any law or order of a court. It held further that the government’s mere reference or allusion to national security threats posed by protests in the country and their supposed potential to destabilise Nigeria did not constitute legal justification for the infringement on the right to freedom of expression.

    UNESCO Training Modules on Public Order and Freedom of Expression

    In response to tensions between the maintenance of public order and the restrictions on freedom of expression, particularly in the context of journalism, UNESCO has developed training modules to empower both security forces and journalists to understand the law and their respective roles and responsibilities.

    • The 2018 Freedom of Expression and Public Order Fostering the Relationship between Security Forces and Journalists seeks to facilitate the relationship between security forces and journalists in order to establish an enabling environment for journalists. This training manual aims to empower journalists and citizens in order for them to exercise their rights to freedom of expression and access to information. It focuses on the importance of transparent law enforcement institutions, which respect freedom of expression and the right to information, and promote accountability and the rule of law while respecting human rights.
    • In 2022, UNESCO, together with the International Police Association and IBZ Gimborn Castle launched a joint Massive Open Online Course (MOOC) for members of law enforcement and police officers to raise awareness of international and regional standards on freedom of expression, access to information, and safety of journalists.

      The use of public order laws to stifle freedom of expression is, unfortunately, an ongoing challenge in countries across the world. In 2023, the UN High Commissioner for Human Rights issued a stern rebuke against the government of the United Kingdom (UK) for its passing of the Public Order Act, 2023, which expanded the powers of the police to stop and search people prohibited objects, enabled bans on specific individuals from being in a certain place at a certain or with particular people, and created new crimes for actions commonly used by protesters such as “locking in,” the act of a protester intentionally attaching themselves to other or to buildings and causing a “serious disruption.”(19) The High Commissioner criticised the vague scope of these offences and the chilling effect they would have on participation in society.

      Footnotes

      1. Shepard, ‘Extremism, Free Speech and the Rule of Law: Evaluating the Compliance of Legislation Restricting Extremist Expressions with Article 19 ICCPR’ Utrecht Journal of International and European Law (2017) (accessible at https://www.utrechtjournal.org/articles/10.5334/ujiel.405/). Back
      2. African Declaration above n 6. Back
      3. For a detailed outline of the limitation of freedom of expression see Module 2 on Restricting Access and Content. Back
      4. African Declaration above n at 16 principles 9 and 22. Back
      5. UN General Assembly, ‘Promotion and protection of the right to freedom of opinion and expression’ (2019) (accessible at https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/A_74_486.pdf). Back
      6. UNESCO, ‘World Trends in Freedom of Expression and Media Development,’ (2018) (accessible at https://www.unesco.org/en/world-media-trends). Back
      7. Id. Back
      8. Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR (1985) (accessible at https://www.icj.org/wp-content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf) at principle 29. Back
      9. ACHPR, Declaration above n at 16 at principles 30 and 31. Back
      10. Article 19, ‘Johannesburg Principles on National security, Freedom of Expression and Access to Information’ (2018) (accessible at https://www.article19.org/wp-content/uploads/2018/02/joburg-principles.pdf). Back
      11. Id at principle 22(5). Back
      12. Amnesty International Togo and Ors v. The Togolese Republic (2020) (accessible at https://globalfreedomofexpression.columbia.edu/cases/amnesty-international-togo-and-ors-v-the-togolese-republic/). Back
      13. Director General of the Namibian Central Intelligence Service v. Haufiku (2019) (accessible at https://globalfreedomofexpression.columbia.edu/cases/director-general-of-the-namibian-central-intelligence-service-v-haufiku/). Back
      14. Kenneth Good v. Republic of Botswana (2010) (accessible at https://achpr.au.int/index.php/en/decisions-communications/kenneth-good-republic-botswana-31305). Back
      15. UNHRC, General Comment 34 above n 5. Back
      16. For example, see New York Times Co. v United States (1971) and Amnesty International Togo and Ors v. The Togolese Republic. Back
      17. Access Now, ‘Who is shutting down the internet in 2023? A mid-year update,’ (2023) (accessible at https://www.accessnow.org/publication/internet-shutdowns-in-2023-mid-year-update/#join-us). Back
      18. Media Defence and Mojirayo Ogunlana-Nkanga represented the applicants in this case. Back
      19. OHCHR, ‘The Public Order Act will have a chilling effect on your civic freedoms – it must be repealed,’ (2023) (accessible at https://www.ohchr.org/en/opinion-editorial/2023/05/public-order-act-will-have-chilling-effect-your-civic-freedoms-it-must-be). Back