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    Confiscation of hardware

    Module 2: Digital attacks and Online Gender-Based Violence

    Overview

    • Confiscation: The confiscation of journalists’ hardware is defined as the temporary or permanent seizure of a journalist’s professional or personal equipment, including laptops, phones, and cameras, amongst others. This is a tactic frequently used by state actors to intimidate or harass journalists, especially those reporting during high-tension periods, such as elections, or during protests.

    International law and standards

    The confiscation of a journalist’s equipment amounts to an attack against freedom of expression, which runs counter to the permissible limitations under Article 19(3) of the ICCPR.(1) It might also be considered prior restraint — restricting access to content before it has been published — that is generally seen under international human rights law to be unnecessary and disproportionate.(2)

    National laws

    The confiscation of journalists’ hardware is a rampant challenge in the SSA region, with many law enforcement officers relying on search and seizure provisions in national laws such as the Penal Code, or cybercrime or computer misuse laws.(3)

    Case Note: Search and seizure and privacy

    Unfortunately, examples abound in SSA of law enforcement seizing the hardware and equipment of journalists, often under dubious circumstances. In the Kenyan Standard Newspapers Limited & another v Attorney General & Others (2006) case, the Standard Newspaper’s and Kenya Television Network’s premises were raided in by officers acting under the authority of the Minister in Charge of Internal Security without a search warrant.(4) They vandalised and destroyed broadcasting and other equipment, broke the printing press, and seized other items ostensibly to protect sensitive information which, if published would have threatened national security.

    The High Court emphasised that while the right to privacy is not absolute, any limitation must not be one that would strip the right of its very core or purpose. It held that the search and seizure was arbitrary, in violation of due process requirements, had no lawful justification, and was in breach of the petitioners’ rights to privacy.

    Conclusion

    In addition to stifling freedom of expression and independent reporting, digital attacks against journalists also prevent or discourage women journalists from entering or staying in the field, preventing greater diversity and representation in the field that is much needed.

    It must be emphasised that the function of journalism covers a broad range of actors, “including professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the internet or elsewhere.”(5) Protections against digital attacks must, therefore, be directed not only at professional journalists but also at others who play an important role in facilitating the free flow of information online.

    Defenders of freedom of expression and gender rights can look to the international human rights mechanisms, including the reports of UN Special Procedures, for guidance and tools to act against digital attacks against journalists and further provide journalists with critical access to legal remedies where appropriate. Additionally, it must be borne in mind that the UNGPs define the responsibilities of private sector actors to respect human rights, mitigate the human rights impacts of their operations, and provide remedies for human rights violations, “given that the private sector owns and/or operates most of the infrastructure, hardware and software upon which the internet relies.”(6)

    In taking forward the sober challenges raised in the Module, it is vital that activists, lawyers, human rights defenders, and supporters of the media understand the various manifestations of online attacks against women journalists, as well as the relevant international and domestic legal provisions, to consider legal actions that can defend and promote the right of women journalists in Africa to practice their craft free from violence. In this regard, it is notable that this module is complemented by Module 3 in this series, which provides detailed guidance on the practicalities of potential litigation for digital attacks affecting journalists.

    Footnotes

    1. Coen, ‘Parliamentary Assembly of the Council of Europe Recommendation 1506: Freedom of expression and information in the media in Europe’, 2001 (accessible at https://rm.coe.int/16807834c5). Back
    2. Media Defence, ‘Module 1: General Overview of Trends in Digital Rights Globally and Expected Developments – Advanced Modules on Digital Rights and Freedom of Expression Online,’ (2022) (accessible at https://www.mediadefence.org/ereader/wp-content/uploads/sites/2/2022/12/Advanced-Modules-on-Digital-Rights-and-FoX-Online-in-SSA-Dec-2022-1.pdf). Back
    3. See: International Federation of Journalists, ‘Ethiopia: Media houses raided and 9 media workers arrested’, 25 May 2022 (accessible at https://www.ifj.org/media-centre/news/detail/category/africa/article/ethiopia-media-houses-raided-and-9-media-workers-arrested.html). See: Sudan Tribune, ‘Ethiopia releases NY Times journalists detained for 5 days’, 23 May 2007 (accessible at https://sudantribune.com/article22323/). Back
    4. Civil Society Protection Platform, ‘Digital Space Case Digest,’ (2020) (accessible at https://www.khrc.or.ke/index.php/publications/231-digital-space-case-digest/file) at p. 21. Back
    5. UN Human Rights Committee, ‘General comment No. 34 Article 19: Freedoms of opinion and expression’, 12 September 2011 (accessible at https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf). Back
    6. UN Guiding Principles on Business and Human Rights above n 47 and APC above n 159. Back