In Media Defence’s Explaining the Issues series, we provide an overview of legal issues faced by the media. See other blogs in the series here.
What are Internet shutdowns?
Around the world, repressive governments often disrupt or ‘shut down’ Internet services in their countries in order to prevent members of the general public from accessing and sharing information online. This is sometimes referred to as a ‘blackout’ or ‘kill switch’, and can include both full or localised shutdowns, bandwidth throttling and service-based blocking of two way communication platforms. Although bandwidth throttling and the blocking of services are not full or localised shutdowns, these can still have a similar effect in rendering the Internet unusable.
Governments do this in order to silence dissenting or oppositional voices, control information and curb freedom of expression, for example in critical political periods such as protests or elections. Despite this posing a severe threat to people’s rights and being contrary to international human rights standards, shutting down the Internet has become a trend in recent years – Access Now have noted that there were 213 documented shutdowns in 33 countries during 2019.
“States are denying internet and telecommunications access in blunt and unprecedented ways… They are shutting down – or demanding that third parties shut down – services, including in times of public protest and mass dissent. Many are demanding that service providers retain and share user data. Still others are rolling back much-needed protections for net neutrality… In short, State censorship and surveillance targeting the foundations of the internet and telecommunications infrastructure often have a crippling effect on everyone’s right to seek, receive and impart information.”
– David Kaye, UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (2014 – 2020)
What does this mean for freedom of expression and digital rights?
The Internet has become vital in how we exercise our rights, with the UN’s Human Rights Council stating “the same rights that people have offline must also be protected online.” The growing number of Internet shutdowns is a concern as such interferences can pose severe restrictions to the enjoyment of the rights to freedom of expression, access to information, and association and assembly rights, as well as services (including mobile banking, online trade, and the ability to access government services via the Internet). The act of disrupting or blocking access to Internet services and websites amounts to a form of prior restraint as it restricts Internet users from expressing themselves through these services and websites before the expression actually occurs.
How do you go about litigating an Internet shutdown?
Central to litigating Internet shutdowns is establishing that it violates the right to freedom of expression and access to information, among others. Any restrictions imposed on freedom of expression, including Internet shutdowns, must be provided by law and must be necessary, clear, unambiguous and accessible. States often rely on “national security” or “public order” to justify Internet shutdowns.
In order to justify the limitation of the right to freedom of expression:
- Internet shutdowns may only be authorised by law.
- The restriction must be necessary
- The restrictions must also be proportionate to the purpose they seek to achieve.
The Southern African Litigation Centre recently prepared a report on navigating litigation during Internet shutdowns in Southern Africa which highlights the legal considerations relevant for challenging Internet shutdowns in courts in the region.
- The parties: consider the impact of the shutdown and if it is necessary to identify specific categories of applicants and respondents. Identify who is responsible for ordering the shutdown and who implemented it.
- The procedure and the relief: consider if the case requires urgent litigation and interdicts, injunctions or judicial reviews. Consider the type of precedent the case will set.
- The law: consider whether there are existing laws that prescribe for blockage orders. If there are, consider whether the government has complied with them and consider if the laws themselves are in accordance with human rights standards.
- The rights: consider which rights were violated and consider responses to government justifications.
Has Media Defence worked on any Internet shutdown cases?
Media Defence works on a variety of Internet shutdown cases around the world. One of the most recent with a positive outcome was that of Togo, where on the 25th June 2020, a landmark judgment was handed down by the Economic Community of West African States (ECOWAS) Court – ruling that by shutting down the Internet in 2017, the Togolese government violated the rights of the plaintiffs: seven Togolese NGOs and a journalist. The Court awarded damages to the plaintiffs, and ordered Togo to put in place a legal framework protecting freedom of expression that is consistent with international human rights law standards. The Court also ordered Togo not to shut the Internet down again. You can read more about the judgment here.
Media Defence is also 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.
To read more about Internet shutdowns and how to litigate digital rights cases, see our Advanced Modules on Digital Rights and Freedom of Expression, in particular Module 2: Restricting Access and Content.
By Lucas Anastácio Mourão, partner at Flora, Matheus & Mangabeira Sociedade de Advogados. The legal solutions devised to combat problems, as they arise with each new period and context, often seem definitive at the time of their conception. Yet as technologies and behaviours evolve over time, so must our legal responses change and adapt. The […]
We’re hiring for a Project Assistant to join our Empowering Women in Digital Rights Advocacy project. The project develops legal communities, in particular women lawyers, to defend, promote and strengthen freedom of expression online. For example, under this project, Media Defence: (i) conducts litigation surgeries for lawyers in sub-Saharan Africa on litigating digital rights cases […]
Lucas Anastácio Mourão, sócio do Flora, Matheus & Mangabeira Sociedade de Advogados. Os problemas apresentados por cada contexto e cada época refletem um dado tipo de solução jurídica que, embora geralmente pareça definitiva no momento de sua concepção, muda e se adapta através do tempo de acordo com as tecnologias disponíveis e também com os […]