This year marks Media Defence’s 15th anniversary. To celebrate this milestone, we will be taking a look at the ways in which freedom of expression has been threatened around the world, and how we have sought to protect it.
The internet has become an essential part of modern life. It has transformed the way we communicate, learn, work, and even access basic services like healthcare and banking. With so many aspects of our lives moving online, the internet acts as an extension of society in the real world. As such, it has become the new frontier for attacks on human rights.
In 2016, the United Nations Human Rights Council declared that “the same rights that people have offline must also be protected online, including the right to freedom of expression, association, and access to information.” By virtue of its essential role in facilitating those rights, access to the internet itself should be protected. Deliberate disruption to websites or internet services can amount to a form of prior restraint, censoring potentially critical speech before it can be expressed.
What are internet shutdowns?
An internet shutdown typically involves the deliberate disruption of the internet, to the extent that it becomes unusable. Internet shutdowns generally target a particular population or a specific location, with the objective of exerting control over the free flow of information. Sometimes referred to as a “blackout”, internet shutdowns include full and localised shutdowns, bandwidth throttling, and service-based blocking of two-way communication platforms.
Internet shutdowns are used by states to limit opposition and disarm dissent. These throttling or blocking measures often coincide with critical political events, such as elections or protests. Research has also found a strong correlation between authoritarian states and the likelihood of an internet shutdown. They pose a severe threat to people’s rights and are therefore contrary to international human rights standards.
A similar tactic is that of “website blocking”. Rather than preventing end-users from accessing the internet as a whole, states can take a targeted approach that prevents certain content from reaching its audience. Website blocking prevents users from accessing specific platforms, Internet Protocol (IP) addresses, domain name extensions, or from making use of certain mobile apps or social media services.
Read more over on our Training Resource Hub.
A growing issue
Internet shutdowns are at an all-time high.
Access Now and the #KeepItOn coalition documented 187 internet shutdowns in 2022. Governments across 35 countries instigated these shutdowns: the highest number in a single year since 2016, when records began. India alone imposed 84 shutdowns in 2022, making it the most likely state to cut internet access for the fifth year running.
Of additional concern is the protracted duration of the shutdowns. In the Tigray region of Ethiopia, citizens experienced a full communications black-out that lasted from November 2022 to January 2023. Though access to the internet is coming back slowly, there are still people in the region who are still unable to go online. In an earlier instance, back in 2016, a shutdown in Pakistan’s Federally Administered Tribal Area lasted for nearly four years until 2021, seriously compromising key industries, including the media.
Litigating internet shutdowns
Media Defence was one of the first organisations to litigate against internet shutdowns, having challenged them since 2017. We have financially supported or litigated around 20 instances of internet shutdowns or web blocking in nine countries across four continents.
As with any restrictions on freedom of expression, disruptions to the internet or to specific websites are only legitimate if they pass the well-established three-part test:
1) The restrictions are prescribed by law;
2) They pursue a legitimate aim; and
3) They are “necessary in a democratic society”.
Though the mandatory blocking of websites or IP addresses is an extreme measure, there are instances where it can be justified in accordance with international standards, for example, where necessary to protect children against sexual abuse. There are almost no legitimate grounds for the wholesale shutdown of the internet, however, and shutdowns will generally amount to an infringement of the right to freedom of expression.
Case study: Togo internet shutdown
In 2018, eight applicants began legal proceedings at the Economic Community of West African States (ECOWAS) Court of Justice following the decision of the government of the Republic of Togo to shut down the internet on the 5th to 10th and 19th to 21st of September, 2017. The shutdowns followed widespread protests by citizens over an attempt by the President to amend the Constitution of the republic with a view to extending his term in office. At the time, there was widespread international media coverage of the protests.
Following the shutdowns, Media Defence, working with Nigerian lawyer Mojirayo Ogunlana-Nkanga, filed the application on behalf of the eight applicants, one of whom was a journalist, before the ECOWAS Court. Among other things, the applicants claimed that the internet shutdown prevented journalists from doing their work and, therefore, violated their rights to freedom of expression and to carry out their journalistic activities. Other claims related to NGOs that suffered loss of earnings as they could not do their work on account of the disruptions to different forms of electronic communications.
In its defence, the Republic of Togo had argued that the action by the government was justified in the circumstances. In their view, the protests had the potential to degenerate into civil war and the government felt it was therefore imperative to protect national security.
On June 25th 2020, the ECOWAS Court held in favour of the applicants. The judgment handed down by the Court set a strong precedent for freedom of expression, digital rights, and press freedom. In its decision, the Court found that Togo was in violation of Article 9 of the African Charter and, by shutting down the internet, it violated the applicants’ rights to freedom of expression. The Court awarded damages and costs to the plaintiffs.
Moreover, the Court directed Togo to take all necessary measures to guarantee that the situation would not reoccur in the future. In essence, this means Togo is required to implement a legal framework protecting freedom of expression that is consistent with international human rights law standards.
Case study: Indonesia internet shutdown
In August 2019, violent protests erupted in the West Papua region of Indonesia. The protests came in response to claims of racist abuse and physical mistreatment of Papuan students, who had been holding a pro-independence rally in the capital of Java.
On 19 August, in an attempt to quell the protests, Indonesian authorities slowed down internet access in areas of West Papua for a number of days. The then Communications and Information Minister confirmed in an interview with Al Jazeera that “the government applied a ‘throttling mechanism’ to filter information and prevent the spread of rumours during the protest”.
Over the next couple of days, the protests continued to spread. In response, on 21 August 2019 the government released an official statement to announce their decision to temporarily shut down the internet in Papua and the surrounding area. The statement justified this shutdown as a means to “accelerate the process of restoring security and order”. As a result, 29 different districts (of 104 in the province) were unable to access the internet until 4 September 2019. In six of these districts, the shutdown lasted until 9 September 2019.
We financially supported a challenge to this shutdown in February 2020. The Alliance of Independent Journalists (AJI) and the Southeast Asia Freedom of Expression Network (SAFEnet) had filed an administrative suit three months earlier against a number of senior officials, including the President of Indonesia. The lawsuit alleged a number of violations, including of the guarantees to freedom of expression and press freedom. AJI and SAFEnet were represented by 18 lawyers, with Ade Wahyudin as lead counsel.
On 3 June 2020, the State Administrative Court of Indonesia held that the government had broken the law by shutting down the internet. In its ruling, the Court considered that the act of obstructing access to the internet violated several statutory provisions. It also found that there was risk that government or agency officials making subjective decisions would cite “danger” as a reason to pursue overbroad responses to unrest. The judgment notes that the Court, rather than the government, would be responsible for “testing whether the decision and or action taken is an abuse of authority and if it is considered a discretion”.
Case study: Nigeria Twitter ban
Media Defence and Mojirayo Ogunlana-Nkanga represented the Plaintiffs in one of four separate sets of proceedings where challenges were brought to the decision of the Nigerian government to ban Twitter in Nigeria on 4 June 2021. As well as blocking access to Twitter, the government issued a directive threatening to prosecute anyone who used Twitter.
The blocking followed Twitter’s decision to delete a post by President Buhari on 2 June 2021. Twitter said the post contravened its ‘abusive behaviour’ rules. The Plaintiffs set out in detail what impact the blocking of Twitter had on their daily activities, including on their professional lives. They also described the impact of the suspension on wider Nigerian society, such as the difficulties faced by many in accessing vital information. One of the Plaintiffs described social media via Twitter as being the biggest civic space in Nigeria.
On 14 July 2022, the ECOWAS Court handed down an important decision for freedom of expression and digital rights. It found that Nigeria, by blocking access to Twitter, had violated the rights of all the Plaintiffs, including the five Nigerian NGOs and four journalists we represented. The ECOWAS Court ordered Nigeria to put in place a legal framework consistent with international human rights law standards, including the right to freedom of expression. Moreover, the ECOWAS Court ordered Nigeria not to block the social media platform again.
Pursuing strategic litigation at regional and international courts is one of the most effective tools in our fight to protect freedom of expression. By helping to develop significant legal precedents, we can contribute to bringing about long-term changes to legislation and practices, often across multiple jurisdictions simultaneously. Even in instances where a judgment is not as far-reaching as we would like or, as in the Togo case, where the judgment has yet to be fully implemented by the government, the exercise is still necessary. Bringing cases before a court can act as a way of documenting human rights abuses and raising awareness of the key challenges to freedom of expression in the respective region or country, paving the way for future legal challenges or campaigning.
Alongside our strategic litigation work, we are investing in our role as a capacity builder, sharing expertise through our partner organisation model and through our regional litigation surgeries. This complements the strategic litigation we undertake, helping connect and engage local actors to challenge internet shutdowns and web blocking with our support.
Fostering local capacity will be the best way to protect digital rights in the long term, as the threats to freedom of speech online develop and change. Even now, governments slowly move away from full-scale blackouts, towards more targeted web blocking and sophisticated internet controls. Though we will continue to challenge internet shutdowns where they occur, in the belief that strong legal precedents are essential to protecting our rights online, we will need to adapt and diversify our approach to counter the threats as they evolve.
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