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    Limitation of the Right to Freedom of Expression

    Module 3: Access to the Internet

    In 2016, the UNSR on FreeEx noted that “[t]he blocking of Internet platforms and the shutting down of telecommunications infrastructure are persistent threats, for even if they are premised on national security or public order, they tend to block the communications of often millions of individuals”.(1) This poses an obvious limitation on the right to freedom of expression and may further limit a range of other rights.

    The 2011 Joint Declaration on Freedom of Expression and the Internet highlights the egregious nature of these limitations:(2)

    “(a) Mandatory blocking of entire websites, [internet protocol (IP)] addresses, ports, network protocols or types of uses (such as social networking) is an extreme measure – analogous to banning a newspaper or broadcaster – which can only be justified in accordance with international standards, for example, where necessary to protect children against sexual abuse.

    (b)Content filtering systems which are imposed by a government or commercial service provider and which are not end-user controlled are a form of prior censorship and are not justifiable as a restriction on freedom of expression.

    (c)Products designed to facilitate end-user filtering should be required to be accompanied by clear information to end-users about how they work and their potential pitfalls in terms of over-inclusive filtering.”

    Internet and telecommunications shutdowns that involve measures to intentionally prevent or disrupt access to or dissemination of information online are a violation of human rights law.(3) In the 2016 UN Resolution on the Internet, the UN Human Rights Council stated that it “condemns unequivocally measures to intentionally prevent or disrupt access to or dissemination of information online in violation of international human rights law, and calls upon all States to refrain from and cease such measures”.(4)

    As set out in General Comment No. 34🙁5)

    “Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with [article 19(3) of the ICCPR]. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with [article 19(3) of the ICCPR]. It is also inconsistent with [article 19(3) of the ICCPR] to prohibit a site or an information dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government.”

    The African Declaration also calls on states not to condone or engage in any disruption of access to the internet or other digital technologies, and not to interfere with the rights to freedom of expression and access to information “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.”(6)

    The UNSR on FreeEx has noted that internet shutdowns are often ordered covertly and without a legal basis, and violate the requirement that the restrictions must be provided for in law.(7) Similarly, shutdowns ordered pursuant to vaguely formulated laws and regulations, or laws and regulations that are adopted and implemented in secret, also fail to satisfy the legality requirement.(8)

    In some countries, this has led to the government enacting new laws to expressly allow for shutdowns to take place.(9)

    The UNSR on FreeEx has further noted that network shutdowns invariably fail to meet the standard of necessity,(10) and are generally disproportionate.(11)

    States frequently seek to justify this on the grounds of national security, which is discussed further below. For example, Chad blocked social media for a period of 472 days in 2018,(12) ostensibly for security reasons. A case was filed against two internet providers,(13) but access was restored shortly after.

    Litigating the internet shutdown in Cameroon

    In January 2020, the Internet was shut down in regions of Cameroon following protests against the arrest of civil society leaders resisting government efforts to impose the Francophone legal and education systems in predominantly Anglophone regions.(14) The internet remained shut down for 93 days and was switched back on hours after Veritas Law filed a legal challenge with the Constitutional Council, with the assistance of Media Defence.(15)

    The constitutional challenge was brought to compel the government to restore the Internet so that the Constitutional Council could prevent the government from shutting the Internet down in the future. Although the matter was eventually dismissed for lack of locus standi, it is an example of the potential positive impact of litigious efforts to hold the perpetrators of internet shutdowns to account, even where a positive judgment cannot be achieved.(16)

    Justified limitations on freedom of expression

    In relation to the blocking and filtering of content, there may indeed be circumstances where such measures are justifiable, such as websites distributing child sexual assault material (CSAM). Such measures are still required to meet the three‑part test for a justifiable limitation, which must be assessed on a case-by-case basis.(17)

    Similarly, limitations to network neutrality may also be permissible in certain circumstances, for example for legitimate network management purposes, or in circumstances in which zero rating is implemented fairly and transparently by public authorities with a mandate to do so and for a valid purpose. However, as a general principle, there should be no discrimination in the treatment of internet data and traffic, regardless of the device, content, author, origin and/or destination of the content, service, or application.(18) Further, internet intermediaries should be transparent about any traffic or information management practices they employ, and relevant information on such practices should be made available in a form that is accessible to all stakeholders.(19)

    Trends in Africa

    It should also be noted that other, increasingly sophisticated ways to limit and control access to the internet and online content are also on the rise in Africa. This includes the adoption of social media taxes that increase prices for users and legal mandates for online publishers to register or obtain licenses, sometimes including all social media users. In Benin, the government attempted to introduce a tax that specifically targeted the use of social media networks. This sparked thousands to use the hashtag ‘TaxePasMesMo’ (don’t tax my megabytes) and ultimately led to the tax being removed.(20) In 2021, Nigeria’s Information Minister stated that social media firms wanting to operate in Nigeria must obtain a local license. Critics have commented that this comes amidst a broader campaign against freedom of expression.(21)

    Footnotes

    1. UNHRC, ‘Report of the UNSR on Freedom of Expression’ (2016) (accessible at https://www.un.org/ga/search/view_doc.asp?symbol=A/71/373) at para 22. Back
    2. International Mechanisms for Promoting Freedom of Expression, ‘Joint declaration on freedom of expression and the internet’ (2011) (accessible at https://www.oas.org/en/iachr/expression/showarticle.asp?artID=848). Back
    3. See above n 22 at para 8. Back
    4. UNHRC, ‘The promotion, protection and enjoyment of human rights on the internet’ (2016) (accessible at https://ap.ohchr.org/documents/dpage_e.aspx?si=a/hrc/res/32/13) at para 10. Back
    5. UNHRC ‘General comment No. 34 Article 19: Freedoms of opinion and expression’ (2011) (accessible at https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf). Back
    6. See above at Principle 38. Back
    7. See above n 22 at para 9. Back
    8. Id at para 10. Back
    9. In India, for example, following the internet reportedly having been shut down more than 40 times during the course of 2017, the Department of Telecommunications issued new rules – the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules – in August 2017 allowing the government to shut down telephone and internet services during a public emergency or for public safety. The government had previously relied on section 144 of the Criminal Code that was aimed at preventing “obstruction, annoyance or injury” to impose internet restrictions. This legal development has been met with mixed responses. On the one hand, the new rules would potentially mean that, if the government were to persist with internet shutdowns, this could arguably be done in a more organised manner. On the other hand, however, concerns have been raised about the lack of definitions for the terms “public emergency” or “public safety”, and the potential that these new rules may have for censorship online. See http://www.hindustantimes.com/india-news/govt-issues-first-ever-rules-to-carry-out-internet-shutdowns-in-india/story-Drn0MnxJAp58RoZoFI7u4L.html for instance. Back
    10. See above n 22 at para 14. Back
    11. Id at para 15. Back
    12. Quartz Africa ‘Chad has now spent a full year without access to social media’ (2019) (accessible at https://qz.com/africa/1582696/chad-has-blocked-whatsapp-facebook-twitter-for-a-year/). Back
    13. Africa News ‘Chadian lawyers challenge ongoing social media shutdown’ (2018) (accessible at https://www.africanews.com/2018/08/21/chadian-lawyers-challenge-ongoing-social-media-shutdown/). Back
    14. Access Now ‘Victory in Cameroon: after 94 days, the internet is back on’ (2017) (accessible at https://www.accessnow.org/press-release/victory-cameroon-94-days-internet-back/). Back
    15. Id. Back
    16. Id. Back
    17. For more on the three-part test, refer to Media Defence ‘Advanced Module 2 on Digital Rights’ and ‘Freedom of Expression Online’, which deal with restricting access and content. Back
    18. See above n 47 at para 5(a). Back
    19. Id at para 5(b). Back
    20. Internet without Borders ‘#TaxePaMesMo: A Campaign to Cancel the Facebook Tax in Benin’ (2018) (accessible at https://internetwithoutborders.org/campaign-to-cancel-facebook-tax-benin/#comments). Back
    21. Arab News ‘Nigeria demands social media firms get local license’ (2021) (accessible at https://www.arabnews.com/node/1874066/media). Back