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    Limitation of the Right to Freedom of Expression

    Module 3: Access to the Internet

    In 2016, the UNSR on freedom of expression 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 that these limitations can cause:(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 UNSR on freedom of expression 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.(6) 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.(7) In some countries, this has led to the government enacting new laws to expressly allow for shutdowns to take place.(8)

    The UNSR on Freedom of Expression has further noted that network shutdowns invariably fail to meet the standard of necessity,(9) States frequently seek to justify this on the ground of national security, which is discussed further below. For example, Chad blocked social media for a period of 472 days in 2018,(10) ostensibly for security reasons.  A case was filed against two internet providers,(11) but access was restored shortly after.

    Litigating the internet shutdown in Cameroon

    Media Defence is currently assisting in litigating a case at the Constitutional Council of Cameroon.  In January 2020, the Internet was shut down following protests against the arrest of civil society leaders resisting government efforts to impose the Francophone legal and education systems in these predominantly Anglophone regions.  The Internet remained shut down for 93 days and was switched back on hours after Veritas Law filed the constitutional challenge.  The constitutional challenge was brought to compel the government to restore the Internet, and so that the Constitutional Council could prevent the government from shutting the Internet down in the future.  You can read more here.

    In relation to the blocking and filtering of content, there may indeed be circumstances where such measures are justifiable.  For example, in relation to websites distributing child pornography.  Such measures are still required to meet the three‑part test for a justifiable limitation.  This will need to be assessed on a case‑by-case basis. Similarly, limitations to network neutrality may also be permissible in certain circumstances, for example for legitimate network management purposes.  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.(12) 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.(13)

    Footnotes

    1. Report of the UNSR on Freedom of Expression to the UNGA, A/71/373, 6 September 2016 (2016 Report of the UNSR on Freedom of Expression) at para 22 (accessible at: https://www.un.org/ga/search/view_doc.asp?symbol=A/71/373). Back
    2. International Mechanisms for Promoting Freedom of Expression, ‘Joint declaration on freedom of expression and the internet’, 1 June 2011 (2011 Joint Declaration). Back
    3. 2017 Report of the UNSR on freedom of expression at para 8. Back
    4. 2016 UN Resolution on the Internet at para 10. Back
    5. As set out in General Comment No. 34: Back
    6. 2017 Report of the UNSR on Freedom of Expression at para 9. Back
    7. Id. at para 10. Back
    8. [1] 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: for instance, http://www.hindustantimes.com/india-news/govt-issues-first-ever-rules-to-carry-out-internet-shutdowns-in-india/story-Drn0MnxJAp58RoZoFI7u4L.html.) Back
    9. 2017 Report of the UNSR on freedom of expression at para 14. Back
    10. 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
    11. 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
    12. 2011 Joint Declaration at para 5(a). Back
    13. Id. at para 5(b). Back