Access to the Internet- South and Southeast Asia

• An obligation on States to progressively promote access to the internet is emerging under international law, in recognition of the fact that access to the internet enables freedom of expression and a variety of other fundamental rights.

• Practices such as internet shutdowns and blocking and filtering of content are severe restrictions on the right to freedom of expression which often do not constitute justifiable limitations.

• National security is frequently relied upon as the justification for an interference with access to the internet, as well as other interferences with the right to freedom of expression.  While national security is listed as one of the legitimate aims for restrictions on the right to freedom of expression in appropriate circumstances, it is often used by states to quell dissent and cover up state abuses.

• ‘Net neutrality’ refers to the principle that all internet data should be treated equally without discrimination based on the device, content, author, origin and/or destination of the content, service or application.

• Intermediary liability occurs where technological intermediaries, such as internet service providers (ISPs) and websites, may be held legally liable for unlawful or harmful content created by users of those services.  Such liability has a chilling effect on freedom of expression online.

Is There a Right to the Internet under International Law?

Not surprisingly, no human rights treaty explicitly recognising a right to access the internet, given that the main such treaties were developed before internet usage became widespread. However, it is increasingly being recognised that the internet is now central to the exercise of the right to freedom of expression, given that it is the dominant means for disseminating information and ideas, whether this involves giving voice to one’s views or accessing information. As such, there is a growing body of authoritative statements to the effect that states are under an obligation to take progressive steps to ensure universal access to the internet.(1)

It is important to understand the nature of this right, as it is being recognised. It is more along the line of certain other economic and social rights, like the right to education, which is recognised by States “with a view to achieving the full realization” over time, rather than immediately.(2) In this regard, it differs significantly from civil and political rights, which states are expected to respect immediately. However, the progressive development of rights does not mean they are inconsequential. Rather, it means that states are required to devote sufficient attention and resources towards achieving these goals.

Although it may seem anomalous to consider access to a certain technology as a right – after all, no right to access broadcasting or the print media has ever been recognised – but the internet is simply not analogous to these other technologies. As important as they were, they do not begin to match the importance of the internet in daily life, and in particular as an expressive medium. Only a tiny fraction of the world’s people have ever had a chance to express themselves through the print or broadcast media, whereas this is not the case at all with the internet. It is also relevant to note that Worldwide surveys show a single predominant attitude towards access to the internet: that it should be recognised as a right.(3)

It should also be noted that there are arguments against recognising a right of access to the internet. Some may claim that this is simply not analogous to other human rights or that expanding the scope of rights undermines the high regard placed on a smaller number of core rights. And states have proven somewhat reluctant to recognise this right, given the important implications for them, including in terms of spending. At the same time, the direction here is reasonably clear.

There is also increasing recognition of access to the internet being indispensable to the enjoyment of an array of fundamental rights.  The corollary is that those without access to the internet are deprived of the full enjoyment of those rights, which, in many instances, can exacerbate already existing socio-economic divisions.  For instance, a lack of access to the internet can impede an individual’s ability to obtain key information, facilitate trade, search for jobs, or consume goods and services.

Access entails the technological ability to make use of the internet in a manner that is affordable, safe, secure, effective and meaningful.  In 2003, UNESCO was among the first international bodies to call on states to take steps to realise a right of access to the internet.  In this regard, it stated that:(4)

Member States and international organizations should promote access to the Internet as a service of public interest through the adoption of appropriate policies in order to enhance the process of empowering citizenship and civil society, and by encouraging proper implementation of, and support to, such policies in developing countries, with due consideration of the needs of rural communities.

Member States should recognize and enact the right of universal online access to public and government-held records including information relevant for citizens in a modern democratic society, giving due account to confidentiality, privacy and national security concerns, as well as to intellectual property rights to the extent that they apply to the use of such information.  International organizations should recognize and promulgate the right for each State to have access to essential data relating to its social or economic situation.

In 2012, the United Nations Human Rights Council (UNHRC) passed an important resolution that “[called] upon all States to facilitate access to the Internet and international cooperation aimed at the development of media and information communications facilities in all countries”.(5)

This has been expanded upon in the United Nation’s Sustainable Development Goals (SDGs), which recognise that “[t]he spread of information and communications technology and global interconnectedness has great potential to accelerate human progress, to bridge the digital divide and to develop knowledge societies”.(6) The SDGs further call on states to enhance the use of information and communication technologies (ICTs) and other enabling technologies to promote the empowerment of women,(7) and to strive to provide universal and affordable access to the internet in least developed countries by 2020.(8) 

The 2016 UN Resolution on the Internet, adopted by the UN Human Rights Council, recognises that the internet can accelerate progress towards development, including in achieving the SDGs, and affirms the importance of applying a rights-based approach in providing and expanding access to the internet.(9) Notably, it affirms the importance of applying a comprehensive rights‑based approach in providing and in expanding access to the internet,(10) and calls on states to consider formulating and adopting national internet‑related public policies with the objective of universal access and the enjoyment of human rights at their core.(11)

In successive Joint Declarations, the special international mandates on freedom of expression at the UN, OSCE, OAS and African Commission have made it clear that they view the right to freedom of expression as including an obligation on states to promote universal access to the internet. For example, in their 2011 Joint Declaration on Freedom of Expression and the Internet, they stated: “Giving effect to the right to freedom of expression imposes an obligation on States to promote universal access to the Internet.”(12)

In Kalda v Estonia, the European Court of Human Rights (ECtHR) held that the applicant’s right to freedom of expression had been violated through a prison’s refusal to grant him access to internet websites containing legal information, as this had breached his right to receive information.(13) The ECtHR noted that when a state is willing to allow prisoners access to the internet, as with the case in question, it had to give reasons for refusing access to specific sites.(14)

In addition to these international developments, several countries – including Greece, Estonia, Finland, Spain, Costa Rica and France – have asserted or recognised some right of access in their constitutions, legal codes, or judicial rulings.

Notwithstanding whether the internet is seen as a self-standing right or an enabling tool to facilitate the realisation of other rights, the groundwork has firmly been laid for the need to realise universal access to the internet.  States are concomitantly required to take steps to achieve universal access.  However, in reality, universal access to the internet is far from being realised.  This is due to a confluence of factors, including a lack of political will to make this a priority, inadequate locally-relevant content, insufficient levels of digital literacy, and challenges in providing last mile access in many contexts.

Interferences with Access to the Internet

Some of the ways in which access to the internet is interfered with are through internet shutdowns, the disruption of online networks and social media sites, and the blocking and filtering of content.  Such interferences represent severe restrictions on the enjoyment of the right to freedom of expression, as well as the enjoyment of a range of other rights and 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.  Prior restraints are State actions that prohibit speech or other forms of expression before they can take place.(15) Due to the profound chilling effect prior restraint can have on the exercise of the right to freedom of expression, the International Covenant on Civil and Political Rights (ICCPR) has been interpreted as prohibiting most forms of prior restraint on speech.(16) The American Convention on Human Rights contains a much more explicit prohibition on prior restraints.(17) The justification of any such measure therefore comes with a heavy burden of justification under the three-part test for restrictions on freedom of expression detailed in Module 1.

What is an Internet Shutdown?

An internet shutdown may be defined as an intentional disruption of internet or electronic communications, rendering them inaccessible or effectively unusable, for a specific population or within a location, often to exert control over the flow of information.(18) In other words, this arises when someone, be it the government or a private sector actor, intentionally disrupts the internet, a telecommunications network or an internet service, arguably to control or curb what people say or do.(19)

In some instances, this may entail there being a total network outage, whereby access to the internet is shutdown in its entirety.  This is sometimes also referred to as a ‘kill switch’. In other circumstances, this may also arise when access to mobile communications, websites or social media and messaging applications is blocked, throttled or rendered effectively unusable.(20) Shutdowns may affect an entire country, towns or regions within a country, or even multiple countries, and have been seen to range from several hours to several months.(21)

It should be noted that in order to conduct shutdowns governments typically require cooperation from private actors that operate networks or facilitate network traffic.(22) As noted by the United Nations Special Rapporteur (UNSR) on freedom of expression, large-scale attacks on network infrastructure committed by private parties, such as distributed denial-of-service (known as ‘DDoS’) attacks, may also have shutdown effects.

What is the Blocking and Filtering of Content?

Although a less drastic measure than a complete internet shutdown, the blocking and filtering of content online can also hinder the full enjoyment of the right to freedom of expression.

Blocking/filtering has been defined as follows:

[T]he difference between “filtering” and “blocking” is a matter of scale and perspective.
– Filtering is commonly associated with the use of technology that blocks pages by reference to certain characteristics, such as traffic patterns, protocols or keywords, or on the basis of their perceived connection to content deemed inappropriate or unlawful;
– Blocking, by contrast, usually refers to preventing access to specific websites, domains, IP addresses, protocols or services included on a blacklist.(23)

For example, internet shutdowns have been common in parts of Myanmar for some time. Since the February 2021 coup d’état, the military regime that assumed power has repeatedly resorted to internet shutdowns as one of an array of repressive digital tools. The throttling of internet access has taken different forms in Myanmar, namely national blackouts, regional blackouts and impeding access through speed restrictions and increased data fees.(24) UN Special Rapporteurs on the situation of human rights in Myanmar, the promotion and protection of freedom of opinion and expression, the right to privacy and the rights to freedom of peaceful assembly and of association, ‘Myanmar: UN experts condemn military’s “digital dictatorship”’ (2022), (accessible here.)(25)

Much international attention has focussed on the military regime in Myanmar’s use of internet shutdowns due their frequent and protracted nature.  However, this is far from the only example of this practice in South and Southeast Asia.  In 2021, internet shutdowns were also documented in India, Bangladesh, Indonesia and Pakistan.(26)

What is Network Neutrality?

Network neutrality — or “net neutrality” — refers to the principle that there should be no discrimination in the treatment of Internet data and traffic, based on the device, content, author, origin and/or destination of the content, service or application.(27) In other words, ISPs should treat all data that travels over their networks fairly, without improper discrimination in favour of a particular application, website or service.(28) Discrimination in this regard may relate to affecting information in a way that halts, slows or otherwise tampers with the transfer of any data, except for a legitimate network management purpose, such as easing congestion or blocking spam.(29) 

The 2017 Report of the UNSR on freedom of expression describes two key ways in which net neutrality may be effected(30):

• Paid prioritisation schemes — where providers give preferential treatment to certain types of internet traffic over others for payment or other commercial benefit

• Zero-rating — which is the practice of not charging for internet data associated with accessing a particular application or set of services while such data is charged to access other services or applications.

In various countries in Asia, there has been significant debate about access to zero‑rated content, as particularly social networking sites offer some measure of free access to users.  On the one hand, the social media companies that promote them argue that zero-rating provides access to people who might not otherwise have been able to access the internet and can serve as a gateway to users to understand the opportunities that the internet can offer. In practice, however, these people often get stuck just accessing the privileged services and, indeed, may even think that these comprise the whole internet.  On the other hand, zero‑rating leads to unfair competition and can distort users’ perceptions by only allowing access to particular sites.(31)

India is among the jurisdictions to have taken action against zero rating, effectively banning it. A 2016 regulation prohibited Internet access providers from offering or charging discriminatory tariffs for data services on the basis of content, with only a limited exception for zero rating for emergency services.(32) The regulation was enacted following an active campaign by digital rights activists in India. This was motivated largely by Facebook’s Free Basics programme, which activists criticised for giving free access to only a restricted number of websites pre-selected by Facebook rather than offering broader Internet access for the poor.(33) India has since maintained its zero-rating ban in updated net neutrality rules.(34)

Limitation on the Right to Freedom of Expression

In 2016, the UNSR on freedom of expression noted: “The 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”.(35) This imposes an obvious restriction 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:(36)

(a)         Mandatory blocking of entire websites, (IP) [internet protocol] 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.(37) 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”(38)

As set out in General Comment No. 34, adopted by the UN Human Rights Committee:(39)

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 restrictions must be provided for in law.(40) Similarly, shutdowns ordered pursuant to vaguely formulated laws and regulations also fail to satisfy the legality requirement.(41) In some countries, this has led to the government enacting new laws to expressly allow for shutdowns to take place.(42)

The UNSR on Freedom of Expression has further noted that network shutdowns invariably fail to meet the standard of necessity,(43) and are generally disproportionate.(44) States frequently seek to justify this on the ground of national security, which is discussed further below.  For example, according to the digital rights advocacy group, Access Now, 2021 marked the fourth consecutive year that India was responsible for imposing the highest number of internet shutdowns globally, with 106 shutdown incidents recorded in 2021.(45) According to their research, political instability was the reason for most of India’s 2021 shutdowns (80 cases), followed by protests (9 cases) and communal violence (7 cases).(46)

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 restrictions, which 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.(51) 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.(52)

National Security as a Ground of Justification

National security is frequently relied upon as a justification for an interference with access to the internet, as well as other restrictions on the right to freedom of expression.(53) While this may, in appropriate circumstances, be legitimate, it also has the potential to be used to quell dissent and cover up state abuses.

The covert nature of many national security laws, policies and practices, as well as the refusal by states to disclose information about national security threats, tends to exacerbate this concern.  Furthermore, courts and other institutions have often been unduly deferential to the state in determining what constitutes a national security threat. As has been previously noted:(54)

The use of an amorphous concept of national security to justify invasive limitations on the enjoyment of human rights is of serious concern. The concept is broadly defined and is thus vulnerable to manipulation by the State as a means of justifying actions that target vulnerable groups such as human rights defenders, journalists or activists. It also acts to warrant often unnecessary secrecy around investigations or law enforcement activities, undermining the principles of transparency and accountability.

As set out in the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (the Johannesburg Principles):(55)

(a) A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government.
(b) In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.

Principle 7 goes on to list a number of circumstances in which the peaceful exercise of the right to freedom of expression should not be considered a threat to national security or subjected to any restrictions or penalties.

Another important principle contained in the Johannesburg Principles is principle 23, which provides: “Expression shall not be subject to prior censorship in the interest of protecting national security, except in time of public emergency which threatens the life of the country”.  The measures described above can often give rise to a prior restraint on content, and consequently have a chilling effect on the enjoyment of the right to freedom of expression.

Similarly, counter-terrorism as a purported justification for network shutdowns or other interferences with access to the internet should be treated with extreme caution.  As noted in General Comment No. 34, the media plays an important role in informing the public about acts of terrorism, and it should be able to perform its legitimate functions and duties without hindrance.(56) While governments may argue that internet shutdowns are necessary to ban the spread of news about terrorist attacks to prevent panic or copycat attacks, it has instead been found that maintaining connectivity may mitigate public safety impacts and help support public order.(57)

At a minimum, if there is to be a limitation of access to the internet, there should be transparency regarding the laws, policies and practices relied upon, clear definitions of terms such as ‘national security’ and ‘terrorism’, and independent and impartial oversight of measures.

Intermediary Liability

Intermediary liability is where technological intermediaries, such as ISPs and websites, can be held legally liable for unlawful content disseminated by users of those services.(58) This can arise in various circumstances, including copyright infringements, digital piracy, trademark disputes, network management, spamming and phishing, “cybercrime”, defamation, hate speech, child pornography and privacy.(59)

A report published by UNESCO identifies the following standards regarding intermediary liability:(60)

• Limiting the liability of intermediaries for content published or transmitted by third parties is essential to the flourishing of internet services that facilitate expression.

• Laws, policies, and regulations requiring intermediaries to impose content restrictions, blocking, and filtering in many jurisdictions are not compatible with international human rights standards for freedom of expression.

• Laws, policies, and practices related to government surveillance and data collection from intermediaries, when insufficiently compatible with human rights norms, impede intermediaries’ ability to adequately protect users’ privacy.

• Whereas due process generally requires that legal enforcement and decision-making be transparent and publicly accessible, governments are frequently opaque about requests to companies to restrict content, the handover of user data, and other surveillance measures.

There is general agreement that insulating intermediaries from liability for content generated by others protects the right to freedom of expression online.  Such insulation can be achieved either through a system of absolute immunity from liability, or a regime that only fixes intermediaries with liability following their refusal to obey an order from a court or other competent body to remove the impugned content.

As to the latter, the 2011 Joint Declaration provides that intermediaries should only be liable for third party content when they specifically intervene in that content or refuse to obey an order adopted in accordance with due process guarantees by an independent, impartial, authoritative oversight body (such as a court) to remove it.(61)

The ECtHR has considered intermediary liability in several cases:

• In 2013, in the case of Delfi AS v Estonia, the ECtHR considered the liability of an internet news portal for offensive comments that were posted by readers below one of its online news articles.(62) 

• The portal complained that being held liable where the comments of its readers breached the right to freedom of expression.  The ECtHR dismissed the case, holding that the finding of liability by the domestic courts was a justified and proportionate restriction of freedom of expression because the comments were highly offensive; the portal failed to prevent them from becoming public, profited from their existence, and allowed their authors to remain anonymous.  It further noted that the fine imposed by the Estonian courts was not excessive.

• In 2016, in the case of Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary, the ECtHR considered the liability of a self-regulatory body of internet content providers and an internet news portal for vulgar and offensive online comments posted on their websites.(63) The ECtHR reiterated that, although not publishers of comments in the traditional sense, internet news portals still had to assume duties and responsibilities.  The ECtHR found that, although offensive and vulgar, the comment was not unlawful speech, and upheld the claim of a violation of the right to freedom of expression.

• In 2017, in the case of Tamiz v United Kingdom,the ECtHR had cause to consider the ambit of intermediary liability.(64) The applicant, a former politician in the United Kingdom, had claimed before the domestic courts that a number of third-party comments posted by anonymous users on Google’s Blogger.com were defamatory.  Before the ECtHR, the applicant argued that his right to respect for his private life had been violated because the domestic courts had refused to grant him a remedy against the intermediary. His claim was ultimately dismissed by the ECtHR on the basis that the resulting damage to his reputation would have been trivial. The ECtHR highlighted the important role that ISPs perform in facilitating access to information and debate on a wide range of political, social and cultural rights, and seemed to endorse the line of argument that ISPs should not be obliged to monitor content or proactively investigate potential defamatory activity on their sites.

Other courts have taken more definitive positions in respect of intermediary liability.  For example, the Supreme Court of India has interpreted domestic law to only provide for intermediary liability where an intermediary has received actual knowledge from a court order, or where an intermediary has been notified by the government that one of the unlawful acts prescribed under the law are going to be committed and the intermediary has subsequently failed to remove or disable access to such information.(65) Furthermore, the Supreme Court of Argentina has held that search engines are under no duty to monitor the legality of third-party content to which they link, noting that only in exceptional cases involving “gross and manifest harm” could intermediaries be required to disable access.(66)

In light of the vital role played by intermediaries in promoting and protecting the right to freedom of expression online, it is imperative that they be safeguarded against unwarranted interference — by state and private actors — that could have a deleterious effect on the right.  For example, as an individual’s ability and freedom to exercise their right to freedom of expression online is dependent on the passive nature of online intermediaries, any legal regime that causes an intermediary to apply undue restraint or self-censorship toward content communicated through their services will ultimately have an adverse effect on the right to freedom of expression online.  The UNSR has noted that intermediaries can serve as an important bulwark against government and private overreach, as they are usually, for instance, best-placed to push back on a shutdown.(67) However, this can only truly be realised in circumstances where intermediaries are able to do so without fear of sanction or penalties.

Conclusion

While the right of access to the internet is still arguably in the developmental stages, it is an indispensable enabler of the right to freedom of expression and, as with all human rights, can only be justifiably limited if a three-part test is met.  Additionally, restrictions on access to the internet may unduly infringe on freedom of expression and associated rights.  In a rapidly developing digital world, the internet is increasingly becoming a contested space, used both by those seeking to defend fundamental rights and those seeking to limit them.  The proper understating of concepts such as internet shutdowns, the blocking and filtering of content, net neutrality and intermediary liability are increasingly necessary to fully protect and promote the right to freedom of expression online.

• 1. Juan Carlos Lara, ‘Internet access and economic, social and cultural rights’, Association for Progressive Communications (September 2015) at p 10-11 (accessible at: https://bit.ly/3YfeW1e). The 2019 Report of the UN Secretary-General’s High level panel on Digital Cooperation noted that “universal human rights apply equally online as offline – freedom of expression and assembly, for example, are no less important in cyberspace than in cyberspace than in the town square” at p 16 (accessible at: https://www.un.org/en/pdfs/DigitalCooperation-report-for%20web.pdf). In Delfi v Estonia the European Court of Human Rights held that the internet provided an unprecedented platform for the exercise of the right to freedom of expression (accessible at: https://globalfreedomofexpression.columbia.edu/cases/delfi-as-v-estonia/).
• 2. Article 13, International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966, in force 3 January 1976 (accessible at: https://www.ohchr.org/sites/default/files/cescr.pdf).
• 3. The Internet Society, ‘Global Internet User Survey 2012’ (2012) (accessible at: https://wayback.archive-it.org/9367/20170907075228/https://www.internetsociety.org/sites/default/files/rep-GIUS2012global-201211-en.pdf).
• 4. UNESCO, ‘Recommendation concerning the promotion and use of multilingualism and universal access to cyberspace’ at paras 7 and 15 (accessible at: https://bit.ly/42X3U3n).
• 5. UNHRC, ‘Resolution on the promotion, protection and enjoyment of human rights on the internet’, A/HRC/20/L.13, 29 June 2012 at para 2 (accessible at: https://ap.ohchr.org/documents/E/HRC/d_res_dec/A_HRC_20_L13.doc). This was expanded upon further the following year in UNHRC, ‘Resolution on the promotion, protection and enjoyment of human rights on the internet’, A/HRC/Res/26/13, 14 July 2014 (accessible at: https://hrlibrary.umn.edu/hrcouncil_res26-13.pdf).
• 6. UNGA, ‘Transforming our world: The 2030 agenda for sustainable development’, A/Res/70/1, 21 October 2015 at para 15 (accessible at https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E).
• 7. Id. at goal 5(b) at p 18.
• 8. Id. at goal 9(c) at p21.
• 9. UNHRC, ‘Resolution on the promotion, protection and enjoyment of human rights on the internet’, A/HRC/Res/32/13, 18 July 2016 at para 2 (accessible at: https://www.refworld.org/docid/57e916464.html).
• 10. Id. at para 5.
• 11. Id. at para 12.
• 12. Adopted 1 June 2011, para. 6(a) (accessible at: http://www.law-democracy.org/wp-content/uploads/2011/06/11.06.Joint-Declaration.Internet.pdf).
• 13. Application No. 17429, 19 January 2016 (accessible at: https://hudoc.echr.coe.int/eng?i=001-160270).
• 14. Id. at para 53. In the subsequent decision of Jankovskis v Lithuania, Application No. 21575/08, 17 January 2017 (accessible at: https://hudoc.echr.coe.int/eng?i=001-170354), also in relation to a prisoner who had been refused access to a website containing education-related information, the ECtHR again upheld the applicant’s claim of a violation of the right to freedom of expression.
• 15. Council of Europe, ‘Prior Restrains and Freedom Of Expression: The Necessity of Embedding Procedural Safeguards in Domestic System’ (May 2018), (accessible at: https://rm.coe.int/factsheet-prior-restraints-rev25may2018/16808ae88c).
• 16. See, for example,the travaux préparatoires of the ICCPR as elaborated upon in Marc J. Bossuyt, ‘Guide to the “Travaux Preparatoires” of the International Covenant on Civil and Political Rights’,Martinus Nijhoff (1987) at p 398.
• 17. Article 13: “1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice. 2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals.”
• 18. Access Now, ‘What is an internet shutdown?’ (accessible at: https://www.accessnow.org/keepiton/?ignorelocale).
• 19. Id.
• 20. Report of the UNSR on Freedom of Expression to the UNGA, A/HRC/35/22, 30 March 2017 (2017 Report of the UNSR on freedom of expression) at para 8 (accessible at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/077/46/PDF/G1707746.pdf?OpenElement).
• 21. Id.
• 22. Id.
• 23. ARTICLE 19, ‘Freedom of expression unfiltered: How blocking and filtering affect free speech’, October 2016 at p 7 (accessible at: https://www.article19.org/data/files/medialibrary/38588/Blocking_and_filtering_final.pdf).
• 24. Athan, ‘Internet Access Amid Darkness and Lives Amid Threats’, May 2022 (accessible: https://progressivevoicemyanmar.org/wp-content/uploads/2022/06/Internet-Shutdown-Athan-May-2022-Eng.pdf).
• 25. The military regime’s imposition of internet shutdowns and other barriers to internet access was condemned in a strongly worded June 2022 joint statement from multiple UN Special Rapporteurs.
• 26. Access Now, ‘The Return of Digital Authoritarianism: Internet Shutdowns in 2021’, p. 4 (accessible at: https://www.accessnow.org/cms/assets/uploads/2022/05/2021-KIO-Report-May-24-2022.pdf).
• 27. 2017 Report of the UNSR on freedom of expression above at n 18 at para 23.
• 28. Electronic Frontier Foundation, ‘Net neutrality’ (accessible at: https://www.eff.org/issues/net-neutrality).
• 29. American Civil Liberties Union, ‘What is net neutrality?’ (accessible at: https://www.aclu.org/issues/free-speech/internet-speech/what-net-neutrality).
• 30. 2017 Report of the UNSR on freedom of expression above n 18 at paras 24-28.
• 31. For an overview of legal treatment of zero-rating schemes globally, see Centre for Law and Democracy’s 2022 amicus curiae submissions before the Constitutional Supreme Court in the proceeding of D-14516 on Ley 1450 de 2011, paras. 101-112 (accessible at: https://www.law-democracy.org/live/wp-content/uploads/2022/02/Colombia.Zero-Rating-Brief.CLD_.final_.pdf).
• 32. Telecom Regulatory Authority of India, Notification No. 2 of 2016, Prohibition of Discriminatory Tariffs for Data Services Regulations (2016) (accessible at: https://trai.gov.in/sites/default/files/Regulation_Data_Service.pdf).
• 33. The Guardian, Aayush Soni, ‘India Deals Blow to Facebook in People-Powered “Net Neutrality” Row’ (2016), (accessible at: https://www.theguardian.com/technology/2016/feb/08/india-facebook-free-basics-net-neutrality-row and BBC, Soutik Biswas, ‘Why is Mark Zuckerberg Angry at Critics in India?’ (2015), (accessible at: https://www.bbc.com/news/world-asia-india-35192184).
• 34. BBC, ‘India Adopts “World’s Strongest” Net Neutrality Norms’ (2018), (accessible at: https://www.bbc.com/news/world-asia-india-44796436).
• 35. 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).
• 36. Joint Declaration, Adopted 1 June 2011, para. 6(a) (accessible at: http://www.law-democracy.org/wp-content/uploads/2011/06/11.06.Joint-Declaration.Internet.pdf).
• 37. Id. 12 at para. 6(b).
• 38. Id. at para 10.
• 39. General Comment No. 34 at para 43.
• 40. 2017 Report of the UNSR on Freedom of Expression, above n 20 at para 9.
• 41. Id. at para 10.
• 42. [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 was met with mixed responses. On the one hand, the 2017 rules meant that government shutdowns could arguably be done in a more organised manner. On the other hand, however, concerns were 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.) In practice, India’s use of internet shutdowns increased in subsequent years, and India has been criticised for not implementing the requirement under the 2017 Rules to establish a centralised repository of data on internet shutdowns. See Access Now, ‘The Return of Digital Authoritarianism: Internet Shutdowns in 2021’, above n 26, p. 7.
• 43. 2017 Report of the UNSR on freedom of expression above n 20 at para 14.
• 44. Id. at para 15.
• 45. Access Now, ‘The Return of Digital Authoritarianism: Internet Shutdowns in 2021’, above n 26, p. 2.
• 46. Id., p. 14.
• 47. Supreme Court of India, Writ Petition (Civil) No. 1031/2019 (2020) (accessible at: https://main.sci.gov.in/supremecourt/2019/28817/28817_2019_2_1501_19350_Judgement_10-Jan-2020.pdf).
• 48. Id. at para. 99.
• 49. Id. at paras. 71 & 152(d).
• 50. 2017 Report of the UNSR on freedom of expression above n 20, paras 9-14.
• 51. 2011 Joint Declaration above n 12 at para. 5(a).
• 52. Id. at para. 5(b).
• 53. For a fuller discussion on national security more broadly see Richard Carver, ‘Training Manual on International and Comparative Media and Freedom of Expression Law at p 77-88 (accessible here: https://www.mediadefence.org/resource-hub/resources/media-defence-training-manual-on-international-and-comparative-media-and-freedom-of-expression-law/).
• 54. Report of the UNSR on freedom of expression to the UNGA, A/HRC/23/40, 17 April 2013 at para 60 (accessible at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf).
• 55. Principle 2 of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, November 1996 (accessible at https://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf). The Johannesburg Principles were developed by a group of experts in international law, national security and human rights, convened by ARTICLE 19. It was endorsed by the then UNSR on freedom of expression.
• 56. General Comment No. 34 at para 46.
• 57. Report of the UNSR on Freedom of Expression to the UNGA, A/HRC/35/22, 30 March 2017 (2017 Report of the UNSR on freedom of expression) at para 14 (accessible at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/077/46/PDF/G1707746.pdf?OpenElement).
• 58. Alex Comninos, ‘Theliability of internet intermediaries in Nigeria, Kenya, South Africa and Uganda: An uncertain terrain’ (2012) at p 6 (accessible at: https://www.apc.org/sites/default/files/READY%20-%20Intermediary%20Liability%20in%20Africa_FINAL_0.pdf).
• 59. Id.
• 60. Rebecca MacKinnon et al, ‘Fostering freedom online: The role of internet intermediaries’ (2014) at pp 179-180 (accessible at: https://unesdoc.unesco.org/ark:/48223/pf0000231162_eng).
• 61. Joint Declaration, adopted 1 June 2011, at paras 2(a)-(b). (accessible at: http://www.law-democracy.org/wp-content/uploads/2011/06/11.06.Joint-Declaration.Internet.pdf).
• 62. Application No. 64569/09, 10 October 2013 (accessible at: httsp://hudoc.echr.coe.int/eng?i=001-155105).
• 63. Application No 22947/13, 2 February 2016 (accessible at: https://hudoc.echr.coe.int/eng?i=001-160314).
• 64. Tamiz v United Kingdom, Application No. 3877/14, 19 September 2017 (accessible at: https://hudoc.echr.coe.int/eng?i=001-178106). Media Defence, together with a coalition of organisations, made submissions to the ECtHR on proposed principles for intermediary based on best practices in national legislation, the views of the Committee of Ministers of the Council of Europe (CoE) and special mandate holders.In the above case before the ECtHR, Media Defence, together with a coalition of other organisations, proposed the following principles: – Intermediaries should not be the arbiters of the lawfulness of content posted, stored or transferred by the users of their services. – Assuming that they have not contributed to or manipulated content, intermediaries should not be liable for content posted, stored or transferred using their services unless and until they have failed to comply with an order of a court or other competent body to remove or block specific content. – Notwithstanding the above, intermediaries should in no circumstances be liable for content unless it has been brought to their attention in such a way that the intermediary can be deemed to have actual knowledge of the illegality of that content. – A requirement to monitor content on an ongoing basis is incompatible with the right to freedom of expression contained in article 10 of the European Convention on Human Rights. The submissions are accessible here: https://bit.ly/4cO0d3d.
• 65. Shreya Singhal v Union of India, Application No. 167/2012 at paras 112-118 (accessible at: https://www.livelaw.in/summary-of-the-judgment-in-shreya-singhal-vs-union-of-india-read-the-judgment/).
• 66. María Belén Rodriguez v Google, Fallo R.522.XLIX (accessible at: https://bit.ly/42NtsPd). The decision has been described in the 2016 Report of the UNSR on Freedom of Expression at para 52.
• 67. 2017 Report of the UNSR on freedom of expression above n 18 at para 30.