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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 regard 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.
    • 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 continue to be used. The ICCPR has been interpreted as providing an absolute prohibition on measures such as these which constitute prior restraint.(4)
    • 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.(5) This concept is known as network neutrality, the principle that all internet data should be treated equally without undue interference.(6)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 the usage of certain applications or websites towards a user’s monthly data allotment, rendering it ‘free.’(7)
    • 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, as well as enforcement.(8)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.(9)


    1. ACHPR, ‘Resolution on the right to freedom of information and expression on the internet in Africa’, ACHPR/Res.362(LIX) (2016) (accessible at: 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: 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: Back
    4. 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: Back
    5. 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: Back
    6. For more on net neutrality, see Module 5 of Media Defence’s Advanced Modules on Digital Rights and Freedom of Expression Online (accessible at: Back
    7. Research ICT Africa, ‘Zero-rated internet services: What is to be done?’ (2020) (accessible at: Back
    8. Data Protection Africa, ‘Trends’ (accessible at: Back
    9. For more, see page 11 of Module 1 of Media Defence’s Advanced Modules on Digital Rights and Freedom of Expression Online (accessible at: In January 2020, a High Court in Kenya handed down a judgment finding that a new national biometric identity system could not be rolled out until a comprehensive data protection framework was in place (see here: Back