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    What Are Digital Rights?

    Module 2: Introduction to Digital Rights

    It is now firmly entrenched by both the African Commission on Human and Peoples’ Rights(1) (ACHPR) and the United Nations(2) (UN) that the same rights that people have offline must also be protected online, in particular the right to freedom of expression.  As stipulated in article 19(2) of the International Covenant on Civil and Political Rights (ICCPR), the right to freedom of expression applies regardless of frontiers and through any media of one’s choice.

    However, how established principles of freedom of expression should be applied to online content and communications is in many ways still being determined.  For example, do bloggers and citizen journalists count as journalists and should they be afforded the same protections with regards to freedom of expression?  How should states regulate the re-tweeting or resharing of hate speech?  What about regulations for defamatory statements from anonymous accounts?  These challenges are actively being grappled with by policymakers and courts around the world.

    Examples of Digital Rights Issues

    To give an idea of the range and complexity of the issues included in the umbrella term ‘digital rights,’ here are some examples:

    • Access to the internet.  Although an express right to the internet has not, as yet, been recognised in any international treaty or similar instrument, there has been much debate about whether the internet should be considered a human right.(3) Nevertheless, there is an increasing recognition that access to the internet is indispensable to the enjoyment of an array of fundamental rights.  In Africa, there is a growing trend of implementing ‘social media taxes,’ making internet access even more unaffordable in a region that already has the highest financial barriers to access in the world.(4)Following the implementation of a social media tax in Uganda in 2018, internet penetration dropped by five million users within the space of just three months.(5)
    • Interferences to access to the internet.  Despite the above, restrictions on accessing the internet through internet shutdowns, the disruption of online networks and social media sites, and the blocking and filtering of content are generally considered a form of prior restraint to freedom of expression as it restricts internet users from expressing themselves through these services and websites before the expression actually occurs.  The ICCPR has been interpreted as providing for an absolute prohibition on such measures.(6) In a landmark case setting this precedent, in June 2020, the Economic Community of West African States (ECOWAS) Community Court of Justice ruled that the internet shutdown implemented by the Togolese government in 2017 was illegal.(7)
    • The freedom to choose among information sources.  The 2017 Report of the UN Special Rapporteur on freedom of expression notes that in the digital age the freedom to choose among information sources is meaningful only when internet content and applications of all kinds are transmitted without undue discrimination or interference by non-state actors, including providers.(8) This concept is known as network neutrality, the principle that all internet data should be treated equally without undue interference.(9)In Africa, there has been significant debate about access to zero-rated content, which is applications or websites the usage of which a mobile operator does not count towards a user’s monthly data allotment, rendering it ‘free.’(10) This is a practice commonly used by social media platforms.  On the one hand, zero-rating provides access to the internet for persons who might not otherwise have been able to do so, but on the other hand, can lead to unfair competition, and can distort users’ perceptions by only allowing access to particular sites.(11)
    • The right to privacy.  Exercising privacy online is increasingly difficult in a world in which we leave a digital footprint with every action we take online.  While data protection laws are on the rise across the world, including Africa, they are of widely varying degrees of comprehensiveness and effectiveness.(12) Government-driven mass surveillance is also on the rise as a result of the development of technology that enables the interception of communications in a variety of new ways, such as biometric data collection and facial recognition technology.(13) In January 2020, a High Court in Kenya handed down a judgment finding that a new national biometric identitysystem could not be rolled out until a comprehensive data protection framework was in place.(14)

    Footnotes

    1. ACHPR, ‘Resolution on the right to freedom of information and expression on the internet in Africa’, ACHPR/Res.362(LIX) (2016) (accessible at: https://www.achpr.org/sessions/resolutions?id=374). Back
    2. UN Human Rights Council, ‘The promotion, protection and enjoyment of human rights on the Internet’ A/HRC/32/L.20 (2016) at para 1 (accessible at: https://www.article19.org/data/files/Internet_Statement_Adopted.pdf). Back
    3. For more see Juan Carlos Lara, ‘Internet access and economic, social and cultural rights’, Association for Progressive Communications, (2015) at pp 10-11 (accessible at: https://www.apc.org/en/pubs/internet-access-and-economic-social-and-cultural-r). Back
    4. Web Foundation, ‘New research explores impact of social media taxes in East and Southern Africa’ (2019) (accessible at: https://webfoundation.org/2019/06/new-research-explores-impact-of-social-media-taxes-in-east-and-southern-africa/). Back
    5. CIPESA, ‘Social Media Tax Cuts Ugandan Internet Users by Five Million, Penetration Down From 47% to 35%’ (2019) (accessible at: https://cipesa.org/2019/01/%EF%BB%BFsocial-media-tax-cuts-ugandan-internet-users-by-five-million-penetration-down-from-47-to-35/). Back
    6. This has been inferred from the travaux préparatoires of the ICCPR that prior restraints are absolutely prohibited under article 19 of the ICCPR.  See Marc J Bossuyt, ‘Guide to the “Travaux Preparatoires” of the International Covenant on Civil and Political Rights’, Martinus Nijhoff at p 398 (1987) (accessible at: https://brill.com/view/title/9771). Back
    7. ECOWAS Community Court of Justice, Suit No. ECW/CCJ/APP/61/18 (2020) (accessible at: http://prod.courtecowas.org/wp-content/uploads/2020/09/JUD_ECW_CCJ_JUD_09_20.pdf). Back
    8. UN Special Rapporteur on Freedom of Expression, Report A/HRC/38/35 on the Role of Digital Access Providers at para.\ 23 (2017) (accessible at: https://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/SR2017ReporttoHRC.aspx). Back
    9. For more on net neutrality, see Module 5 of Media Defence’s Advanced Modules on Digital Rights and Freedom of Expression Online (accessible at: https://www.mediadefence.org/ereader/publications/advanced-modules-on-digital-rights-and-freedom-of-expression-online/module-5-trends-in-censorship-by-private-actors/). Back
    10. Research ICT Africa, ‘Zero-rated internet services: What is to be done?’ (2020) (accessible at: https://www.researchictafrica.net/docs/Facebook%20zerorating%20Final_Web.pdf). Back
    11. For a discussion on zero-rating in Africa, see Research ICT Africa, ‘Much ado about nothing? Zero-rating in the African context’, (2016) (accessible at: https://www.researchictafrica.net/publications/Other_publications/2016_RIA_Zero-Rating_Policy_Paper_- _Much_ado_about_nothing.pdf). Back
    12. Data Protection Africa, ‘Trends’ (accessible at: https://dataprotection.africa/trends/). Back
    13. Kenyan High Court at Nairobi , Consolidated Petitions No. 56, 58 & 59. (2020) (accessible at: http://kenyalaw.org/caselaw/cases/view/189189/). Back