General Overview of Trends in Digital Rights Globally – Sub-Saharan Africa

Key Insights

• Provide an overview of global trends in digital rights;
• Set out various aspects of the right to access information in the digital age, such as the blocking of access to the internet and efforts to preserve net neutrality;
• Evaluate the current state of the right to privacy by looking at data protection, surveillance, the collection of biometric information and efforts to subvert privacy by targeting encryption and using artificial intelligence; and
• Explore new aspects of the right to freedom of expression online, including growing threats in the form of misinformation, hate speech regulations, and online violence against journalists.

Introduction

Over the last decade, the number of internet users worldwide has more than doubled. As of January 2024, the digital population consists of over 5.3 billion people.(1) In Africa, the number of recorded internet users increased almost four-fold between 2012 and 2022, going from just over 167 million people to over 650 million in only ten years.(2) The internet has revolutionised the free flow of information by offering anyone with an internet connection the ability to gather and share information and ideas.(3) This had a profound effect on the exercise and the protection of the triad of information rights, namely the rights to privacy, freedom of expression and access to information.

The UN Human Rights Council’s (UNHRC) 2016 Resolution on the promotion, protection and enjoyment of human rights on the internet confirmed that these rights enable a full array of other fundamental rights and deserve the same protection when exercised online as offline.

Unfortunately, despite the internet’s potential as a tool for democratic empowerment, the rights of internet users globally are subject to a wide range of challenges, threats, restrictions, and violations, at the hands of both state and non-state actors. There is no shortage of obstacles to achieving the full capacity of the internet and digital spaces where human rights can be protected, respected, promoted, and progressively realised.

Fortunately, in many instances, digital rights advocates, activists, and litigators have developed effective responses to oppressive regulations and restrictions on online rights, and there is a notable rise in innovative solutions challenging these problems. For example, in 2023 the Economic Community of West African States (ECOWAS) Court ruled that Guinea had unjustifiably infringed on the applicants’ rights to freedom of expression and rights to information, in terms of the African Charter on Human and Peoples’ Rights, after it disrupted internet access and blocked access to social media sites in the midst of elections protests. The Court ordered Guinea to take all necessary measures to ensure that this violation does not occur again, as well as to adopt and implement laws and other safeguards to fulfil its obligations regarding the right to freedom of expression under international human rights instruments.(4)

This module touches on other recent developments relating to the triad of information rights as they relate to the digital realm, and highlights expected developments moving forward.

The Right to Access Information

There is increasing recognition around the world that access to the internet is a critical component of the right to access information (in addition to others such as the right to education).(5) Access to the internet has increased significantly over the last decade, but, regrettably, so too have new and innovative restrictions on how people access the internet, including internet shutdowns, blocking and filtering of content, social media taxes, censorship, and distributed denial of service (DDoS) attacks.

Internet shutdowns

Dozens of countries have been affected by internet shutdowns in recent years. Between January and May 2023, a period of just five months, Access Now recorded 80 internet shutdowns in 21 countries.(6) With 2024 being dubbed the biggest election year in history, it has been predicted that internet shutdowns will be on the rise.(7) An example of this has been seen as early as February 2024, when Senegal experienced an internet shutdown after the President announced that the country’s elections would be delayed.(8)

Since experiencing a coup in 2021, internet shutdowns in Myanmar have been and continue to be imposed by the military across many parts of the country.(10) In 2022, the United Nations (UN) condemned the attempt to establish a “digital dictatorship” and the use of internet shutdowns to undermine public opposition. The UN found that since August 2021, 31 townships in the 7 states of Myanmar had reported internet shutdowns and a further 23 townships experienced throttling of internet speeds.(11) The longest nationwide outage has been reported as being for nearly 2.5 months.(12) These internet shutdowns typically coincide with an escalation of military offensives and human rights violations by the military (13)

Within Africa, Zimbabwe and the Tigray region of Ethiopia have seen some of the most prolonged internet shutdowns in history:

• At the beginning of 2019, the Zimbabwean government ordered a three-day internet shutdown across the country amid protest action. Following an interim court ruling, the internet was partially restored.(14) Zimbabwe experienced internet shutdowns again in 2022,(15) and there were further reports of the quality of internet access being degraded ahead of the 2023 elections.(16)
• In Tigray, a northern region of Ethiopia in which fighting between rebels and government forces has been ongoing since November 2020, the internet and phone service have been shut down for over two and a half years despite a peace agreement between the parties.(17) Furthermore, in mid-2023, the government imposed new restrictions in other parts of the country by blocking access to mobile internet in the Amhara region and restricting mobile data across several major cities in the region.(18) In February 2023, social media platforms including Facebook, TikTok, and Telegram were also shut down.(19)

Shutdowns also occurred in Sudan, Libya, Somaliland, Sierra Leone, Tunisia, and Burkina Faso in 2022, and in Guinea, Mauritania, Uganda, Sudan and Somaliland in 2023.(20) In October 2023, during Mozambique’s local government elections, reports recorded internet cuts.(21)

Other regions have seen similar trends. In Colombia, the Constitutional Court held in September 2023 that the government had violated the rights to freedom of expression, association, and assembly due to their failure to provide petitioners with timely, truthful, and complete information about internet shutdowns during public protests that occurred in 2021.(25) The Court ordered the State to respond publicly on these issues.

It has become clear that internet shutdowns are increasingly a tool used by governments to control criticism and protest, especially at times of civil unrest or around election periods, and as military tactics during conflicts. For example, recent internet shutdowns in Ukraine and Gaza demonstrate how access disruptions are used as a tactic of warfare to control information flows:

• Since the invasion of Ukraine by Russia in 2022, internet shutdowns have been routinely used as a part of Russian military tactics to prevent Ukrainians from sharing or receiving news about the war, getting information about humanitarian aid, or fact-checking information.(26)
• Since October 2023, 15 of the 19 internet providers operating in Gaza have faced total shutdowns at the hands of Israeli forces. Internet traffic across Gaza decreased by 80% throughout October 2023 as a result of direct attacks on telecommunications infrastructure, restrictions on access to electricity, and technical disruptions to telecommunications services.(27) Israel’s bombing campaign has reportedly specifically targeted network installations and disabled much of the communications infrastructure linking Gaza and the rest of the world.

However, recent jurisprudential developments have indicated strong legal support for the position that such shutdowns are an unjustifiable violation of the right to freedom of expression and access to information, and it is hoped that such developments will continue and will spark the necessary civic awareness — particularly among mobile operators and civil society — to generate action that will ensure the protection of people’s rights in the digital age.

Blocking and filtering of content

In addition to full-scale blackouts, censorship of online content has also been on the rise over the past decade around the world. An increasingly prevalent form is the blocking and filtering of certain content on social media. Blocking refers to the prevention of access to a website, domain, or IP address. In contrast, filtering is the use of technology to sieve through content, blocking individual pages that display specific characteristics.(28) Although considered less extreme than internet shutdowns or other measures that fully limit access, such mechanisms are also deeply concerning for the potential they have to distort the information that is available to a population, potentially enabling propaganda and limiting diverse viewpoints in more subtle ways than total restrictions on access. Blocking and filtering may, in some instances, constitute a violation of Article 19 of the Universal Declaration of Human Rights (UDHR), which grants everyone the right “to seek, receive and impart information and ideas through any media and regardless of frontiers.”(29)

In the last decade, China has developed the largest and the most sophisticated online censorship regime in the world. As a result, many controversial events are prohibited from news coverage, preventing Chinese citizens from becoming aware of their government’s actions.(30) The COVID-19 pandemic again illustrated how China blocks and filters content around topics that it deems to be harmful, thereby denying its citizens the opportunity to access information.(31)

China is not alone in this regard. Several governments have taken to censorship in order to control the flow of information, especially around critical times like election periods or conflict. In a 2011 Report, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (UNSR on FreeEx) noted with particular concern the—

emerging trend of timed (or “just-in-time”) blocking to prevent users from accessing or disseminating information at key political moments, such as elections, times of social unrest, or anniversaries of politically or historically significant events. During such times, websites of opposition parties, independent media, and social networking platforms such as Twitter and Facebook are blocked, as witnessed in the context of recent protests across the Middle East and North African region.(32)

Unfortunately, in recent years this trend has continued unabated in several African countries. For example:

• In early 2019 when Chad reached over 365 days of censored access to the internet following a recommendation to amend the Constitution to allow the President to remain in power until 2033.(33)
• More recently, in 2023, NetBlocks reported that Gabon had blocked access to social media platforms on the day of presidential and legislative elections.(34) Access was restored after 4 days after military officers announced that they had taken power of the country.(35)
• Similar social media restrictions have occurred in other countries such as Zambia,(36) Uganda,(37) and Cameroon just before or after election periods.(38)

Blocking and filtering of content is also ordered by governments in order to cover up other violations of human rights:

• In 2021, the Eswatini government ordered all operators to suspend access to Facebook, WhatsApp, and Twitter as it claimed that social media was being used to “spread misinformation” contributing to violence around the country.(39) However, this and other internet disruptions at the time were reported to have been ordered instead to quell pro‑democracy protests and reports about police brutality.(40)
• In 2021, the Nigerian government banned Twitter in what was widely seen as retaliation by President Muhammadu Buhari for Twitter’s moderation of a tweet that it says violated its policies on incitement.(41) As discussed above, the ECOWAS Court held in a foundational case for social media blocking that the seven-month ban was unlawful and violated the freedom of expression of the people of Nigeria.(42)
• In Zimbabwe in 2022, the opposition Citizens’ Coalition for Change (CCC) reported the throttling of internet speeds and blocking of access to social media during a political rally held ahead of the national elections.(43)
• In 2023, the Senegalese government blocked certain social media platforms after they re-arrested an opposition leader, whose initial arrest had sparked riots across the country.(44)

This phenomenon is a threat not only to the public’s right to access information but also to the very core of democracy which relies on the free flow of information to support informed public participation. It is expected that with increases in the number of people with access to the internet and the potential for citizen organisation and uprisings on social media, resultant increases in censorship may be likely.

Social media taxes

In recent years, several African states have introduced, or considered introducing, taxes specifically for the use of social media, ostensibly to raise public revenues or protect the local telecommunications sector from competition. This has resulted in more people being pushed offline, increased barriers to accessing the internet, and limits on freedom of expression and access to information — as well as severe economic impacts.(45)

The Web Foundation has noted that Africa is the continent with the highest financial barriers to internet access.(46) Social media taxes add yet another barrier to a resource that is already inaccessible to many, a phenomenon which serves to deepen the digital divide and hinder people’s rights. For example:

• In Uganda the government imposed a tax scheme for the daily use of mobile communications apps such as Facebook, Twitter, Instagram, LinkedIn, WhatsApp, Snapchat, and Skype in 2018. The Collaboration on International ICT Policy in East and Southern Africa (CIPESA) recorded that the internet penetration rate in Uganda dropped by 5 million users within three months of the scheme’s rollout, severely limiting freedom of expression and access to information.(47) Research also found that the tax lowered domestic tax revenue.(48) Uganda subsequently abandoned the over-the-top (OTT) tax but later introduced a new 12% excise tax on internet bundles that is reportedly disproportionately affecting women, exacerbating the gender digital divide.(49)
• Tanzania and Zambia have also initiated such schemes, along with attempts in a host of other countries in East and Southern Africa.(50) Some taxes have taken a slightly different form, such as Ghana which implemented a 1.5% levy on electronic money transfers.(51) However, despite these growing concerns, there have been notable successes in challenging this emergent threat.

In contrast to the burden of social media taxes placed on internet users on the continent, there is growing support for the notion that international digital platforms, particularly the social media companies, should be taxed in the countries in which they operate and generate revenues, including those in Africa. In 2023, the Organisation for Economic Co-operation and Development (OECD) secured agreement from 138 countries on a landmark initiative that would enable major reform to the international tax system to more fairly tax digital platforms in the jurisdictions in which they earn revenue.(52) This is seen as a more equitable and rational way of boosting tax revenues in countries seeking to benefit from the rise of digital technologies without hindering the expansion of access to the internet to those with limited ability to pay.

Registration of bloggers

Bloggers are a largely undefined group of people who write online entries, self-publish, might remain anonymous and write either semi-professionally or professionally.(53) In addition to their individual rights to freedom of expression, these types of internet users fulfil an important role in our contemporary society by disseminating information and enabling discussion, and many international standards and guidelines on freedom of expression online provide legal standards that protect bloggers and journalists alike.(54)

In recent years, there has been a rising trend of implementing laws and regulations that require these kinds of users to register or obtain licenses in order to continue publishing online:

• In 2018, Tanzania introduced new laws that require bloggers and online television outlets to pay large annual licensing fees (the amounts were subsequently revised in 2021, though are still significant).(55) The law also makes blogging without a license a criminal offence and enables publishers to lose their license for publishing content that “causes annoyance” or “leads to public disorder,” drawing heavy criticism from civil society organisations. Human Rights Watch notes that the licensing fee has introduced a severe barrier to freedom of expression and the dissemination of information and that the disproportionately high fees are pushing bloggers offline.(56)
• In Kenya, a 2019 private members’ bill, the Information and Communication (Amendment) Bill, sought to introduce regulations relating to the licensing of social media platforms and the sharing of information by licensed persons.(57) The Bill would require the registration of bloggers and allow the Communications Authority to develop a bloggers’ code of conduct. As of 2024, the Bill has not yet passed and has since gone through several iterations.
• In 2020, Lesotho proposed the Lesotho Communications Authority (Internet Broadcasting) Rules which sought to require all social media users with over 100 followers to register as “internet broadcasters” and comply with the rules governing broadcast media houses.(58)
• Zambia’s Independent Broadcasting Authority likewise issued rules requiring online television stations to obtain a broadcasting license and criminalising online broadcasting without such a license.(59)

Growing threats to formal and informal modes of journalism are on the rise. Imposing burdensome obligations on bloggers and journalists should be strongly condemned, and states should be compelled to respect and protect their international human rights obligations.

Increased access and the need for digital literacy and safeguards

Information and Communication Technologies (ICTs) have become critical tools for boosting economic growth and development. In doing so, they have the potential to assist with the achievement of socio-economic goals and aspirations. In order to achieve these benefits, however, access to ICTs must be coupled with digital literacy programmes to enable people to access and make use of the internet safely and meaningfully.

Almost all countries around the world have experienced a dramatic increase in access to ICTs in recent years. Statista records that Africa has taken great strides in recent years, with an estimated 570 million African internet users in 2022, 645 million in 2023 and a predicted 729 million in 2024 — representing exponential growth in the previous decade.(60)

Digital literacy is critical to realising the full potential of digital development and that all users are able to use online spaces safely and inclusively and leverage the benefits of the digital era. As societies have become increasingly dependent on digital tools in the wake of the COVID-19 pandemic, the necessity of digital literacy has only become more urgent.

Guidance on the requirements for effective digital literacy programmes is provided under several international instruments. For example, the UN Committee on the Rights of the Child (UNCRC) General Comment 25 on children’s rights in relation to the digital environment(65) notes that: (66)

• State parties should ensure that digital literacy is taught in schools, as part of basic education curricula.
• Curricula should include the knowledge and skills to safely handle a wide range of digital tools and resources. They should also include critical understanding and guidance on how to find trusted sources of information, and how to identify dis- and misinformation, and other forms of biased content.
• State parties should promote awareness among children of the possible adverse consequences of exposure to risks relating to content, contact, conduct and contract, as well as coping strategies to reduce harm and strategies to protect their personal data and those of others. State parties must build children’s social and emotional skills and resilience within this context.

While there are pockets of progress in advancing internet access, improvements in internet access and increases in demand must be proportionally matched with efforts to boost digital literacy rates in order to protect new internet users from online harms, to build safe, inclusive, and constructive online public domains, and to ensure that the full spectrum of ICT opportunities is available to everyone. Without appropriate digital literacy as internet access continues to grow, online harms will persist and may increase, putting some of the most vulnerable members of our society at risk.

The interplay between net neutrality and zero-rated content

Net neutrality refers to the principle of seeking to ensure that access to digital content is open, free-flowing, fair, and equal. The Electronic Frontier Foundation (EFF) explains that net neutrality fulfils the critical role of ensuring that people can freely access information and impart ideas across the digital information society, without interference or direction from other actors.(68)

Efforts to control the free flow of information have the potential to distort content consumption by enabling free access to certain content in preference to other content, as well as access to the market. Net neutrality may be under threat by the increasingly popular initiative in Africa of zero-rating, a process in which specific online content is made available for free to users (i.e., without the need to pay telecommunications providers for the associated data costs) on the grounds that it is of public interest, such as news or educational content.

There are levels to this debate, with some arguing that zero-rating can be a tool to facilitate universal access to the internet and to critical public good information. Many digital rights activists, however, argue that zero-rating is a means for the new internet gatekeepers to centralise power and control access.

Ways to implement net neutrality vary across a broad spectrum in practice: (72)

• Brazil outright prohibits discriminatory conduct.
• India bans pricing differentials based on content.
• The Netherlands prohibits blocking internet services, usage of deep-packet inspection for tracking customer behaviour, and other forms of network traffic manipulation.
• Various ex ante measures, including price regulation, surcharges, and zero-rating, have been implemented with differing levels of success. Canada, Singapore, and Slovenia have adopted these measures to varying degrees.

African countries — many of which continue to face low internet penetration rates — are often supportive of zero-rating policies that advance access to public good content. In South Africa, for example, the government required mobile operators to zero-rate a wide range of websites to enable virtual learning to continue when the COVID-19 pandemic hit the country in early 2020, forcing the rapid closure of schools, universities, and other educational institutions and threatening to undermine the right to education for millions of young South Africans. The South African Department of Communications and Digital Technologies later published directions providing a framework for the zero-rating of websites for education and health.(73) The pandemic-related initiatives also led to new mandatory zero‑rating obligations being placed on mobile operators that were vying for new spectrum licenses in a long-awaited spectrum auction which took place in March 2022.(74) Despite this gain, the process has since stalled with concerns that the Independent Communications Authority of South Africa (ICASA) has failed to enforce the zero-rating of government and public benefit organisations.(75)

As these examples show, while zero-rating carries implications for net neutrality, in societies with challenges to ICT access, the policy is often viewed favourably. The potential effects require careful consideration of who is empowered to make decisions about what content should be freely accessible, and the involvement of affected populations in such decisions. There are also concerns that developing and transitioning economies may be pressured into accepting distortive zero-rating programmes by powerful international multinationals. The experience in India has highlighted the need to ensure that access to ICTs is not controlled or shaped by service providers who may use development priorities as a guise to control access for the most marginalised people.

The rise in cybercrimes and cyber attacks

There is growing attention to the prevalence of cybercrime as a threat to digital rights and inclusion, and the need for more appropriate state response mechanisms. Attacks on individual users, businesses, CSOs, and states are becoming commonplace: in 2023, Africa continued to be one of the world’s regions targeted most by cybercrime due to the increased digitisation of organisations without the necessary corresponding cybersecurity practices.(76) In 2021, cybercrime was reported to have reduced GDP within Africa by more than 10%, at a cost of an estimated 4.12 billion USD.(77) Similar reports were made for 2022.(78)

Interpol has identified online scams, digital extortion, business email compromise, ransomware and botnets as the top five cyber threats in Africa at present.(79) In addition, the rise of Artificial Intelligence (AI) technologies, including public access to generative AI, is likely to result in a rapid expansion of more targeted and sophisticated cybercrime in the coming years.(80)

While cybercrime itself poses a serious threat to human rights, the corresponding rise of oppressive and aggressive cybersecurity measures is also jeopardising the realisation of an array of digital rights. The UN Conference on Trade and Development (UNCTAD) reports that 39 out of the 54 countries in Africa analysed (72%) have cybercrime legislation in place.(81)

Despite legitimate security concerns, there is a growing trend of oppressive cybercrime laws that “do little other than robbing internet users of their basic human rights.”(82) The intense and often vague legislative measures implemented to counteract cybercrime are frequently weaponised by oppressive states to restrict fundamental human rights and freedoms, leaving internet users vulnerable to both these crimes and the harsh response they elicit. In response to rapidly growing and evolving cybercrime risks, states will likely continue to be reactive and adopt measures that are unlikely to accord with international human rights norms.

The Right to Privacy

In the last decade, there have been considerable developments relating to the exercise of the right to privacy online.

Data Privacy

2016 saw the coming into force of the General Data Protection Regulation (GDPR) in Europe, with widespread consequences for regions around the world as well. It exposed the increasing need to protect the right to privacy in a rapidly changing technological landscape and prompted rapid legislative change in many countries seeking to maintain trade and data flows with the European region.

Comprehensive data protection laws are vital for securing human rights in the digital age, and the GDPR developed, for the first time, some new safeguards that are necessary for the advancement of human rights in the digital age.(85) In particular, it protects people against gratuitous and excessive data collection. In the years since, the sum of fines issued under the GDPR has skyrocketed, reaching a total of over EUR4 billion by the end of 2023.(86) In 2023, the European Data Protection Board reported that the GDPR has strengthened, modernised, and harmonised data protection principles across the EU.(87) Despite this, there have been notable challenges in implementing the GDPR, enforcing fines and rulings made under it, and ensuring compliance with it across the continent, and important interpretative decisions are ongoing.(88)

Another flagship data protection law, the California Consumer Privacy Act (CCPA), also came into effect in January 2020, seeking to address how private companies are allowed to collect and use the data of California residents. The CCPA allows residents of California to know:

• What personal information a data company has collected about them.
• What personal information third parties have obtained about them.
• The specific personal information a company has compiled about them.
• Specific inferences that have been made about them based on their personal information.(89)

The CCPA undoubtedly increases data privacy protections and sends a strong message that “[i]n a GDPR + CCPA world, negligence of data privacy protections will not be tolerated and will result in higher fines.”(90)

The GDPR and CCPA set off a wave of other countries passing revised or new data privacy laws which are aimed at protecting people’s data in the modern age. The UN Conference on Trade and Development (UNCTAD) has found that of the 194 countries they reviewed:

• 71% of countries have data protection legislation.
• 9% of the states have draft legislation.
• 15% of countries have no legislation.
• 5% of countries have no data available.

While many countries have data protection frameworks in place, there is a significant lack of implementation of these frameworks, with many countries failing to establish or appoint data protection authorities to enforce these laws or failing to provide these authorities with the independence and resources needed to act effectively.(91) In addition, there have been significant enforcement challenges, with many data protection authorities on the continent struggling with a lack of independence and resources.(92)

Cross-border transactions and multinational corporations that function across multiple jurisdictions require data protection regulations, demonstrating the importance of data protection to enabling trade. African states are increasingly recognising the need to enact data protection laws and the focus should now shift towards ensuring the content of these laws meaningfully enable fundamental rights and ensuring that laws and implemented and enforced. For example, many laws contain exemptions that limit the scope and effectiveness of the law, such as for public or law enforcement agencies,(93) and there may be a need for such laws to be updated to account for the new data protection challenges of artificial intelligence (AI).

Surveillance

Mass and targeted surveillance practices are on the rise, and there is a notable absence of international legal frameworks and strict safeguards in place. State-led surveillance is frequently implemented without underlying legal regulation and in a way that lacks transparency and accountability, initiatives which are a genuine affront to the right to privacy.

As ever-more sophisticated technologies are developed, such as biometric surveillance, facial recognition technology, and data analysis using artificial intelligence, the issue of surveillance is only going to grow as a concern for digital rights. Although effective litigation and advocacy can result in important protections and safeguards, it is clear that there is still much to be done by states to put in place more robust legal frameworks and strict safeguards relating to surveillance in the future to avoid such challenges and to protect privacy rights.

The use of video surveillance and closed-circuit television (CCTV) is also a common surveillance occurrence across the world, including in combination with facial recognition technology (FRT). State and non-state actors frequently invoke security threats to justify the widespread use of video surveillance and FRT. This form of surveillance and monitoring is susceptible to an array of abuses.

The American Civil Liberties Union has identified the following:

• Institutional abuse.
• Abuse for personal gain.
• Discretionary targeting.
• Voyeurism.
• Location monitoring.

Such surveillance is often unregulated or under-regulated and can have a chilling effect on public life, in addition to creating risks of being abused to monitor critics or activists, target marginalised groups, and to collect excessive data, often without consent. The quality and sophistication of video surveillance are also becoming more salient, with concerns, for example, that data from video surveillance systems can be combined with other forms of private and public information to create incredibly detailed profiles of people. Conversely, while such surveillance systems are often invasive, the potential inaccuracy and fallibility of the technology is also a concern, with a growing body of evidence that FRT systematically misidentifies certain populations and is vulnerable to discrimination and bias.(103)

A 2021 report by Thales (a large producer of surveillance technologies) recorded the following top seven trends of facial recognition:(104)

• Facial recognition technologies are increasingly used to identify and verify a person using their facial features by capturing, analysing, and comparing patterns based on the person’s facial details.
• Facial recognition technologies are predominately used for security and law enforcement, health and marketing, and retail.

Despite calls for moratoriums on certain uses of these kinds of technology, it is clear that facial recognition technology is here to stay, with expected industry growth of $5.71 billion (USD) in 2024 globally.(105) It is also increasingly being used for surveillance, including across Africa. Fortunately, a wave of activism has recently begun to raise awareness about the potential rights implications of these technologies, with some notable successes in both litigation and policy change.

The collection of biometric data

Biometric data collection entails the identification and authentication of a person based on unique biological characteristics. FRT is considered a form of biometric data that is specifically widely used for surveillance purposes. According to a 2023 Review of biometrics by Thales, biometric technologies are most frequently used for the following:(113)

• Law enforcement and public security: identifying criminals, suspects and victims.
• Military: identifying enemies and allies.
• Border, travel, and migration control: identifying travellers, passengers, and nationality.
• Civil identification: identifying citizens, residents and voters.
• Healthcare and subsidies: identifying patients, beneficiaries, and healthcare professionals.
• Physical and logistical access: identifying owners, users, employees and contractors.
• Commercial applications: identifying consumers and customers.

The use of biometric technology is proliferating at a rapid rate, causing significant concern with regard to human rights. States are often ill-equipped to deal with the security and data storage challenges that come with collecting and storing such sensitive personal information, and examples of biometrics being used either for nefarious purposes or to the exclusion of already-marginalised populations abound. There are also growing concerns that the frequent use of biometric technologies has become unduly intrusive, contributing to the bourgeoning network of surveillance technologies. Civil liberties organisation Liberty has noted that:(114)

Use of big data and new technologies is often viewed as a panacea for the challenges that modern-day law enforcement faces. Technologies such as mobile fingerprint scanners, facial recognition and mobile phone data extraction, used in conjunction with one another and police super-databases, risk changing the relationship between the individual and the state, creating a society in which anonymity is the exception, and pervasive surveillance is the norm.

As with most technologies, the positive potential is significant, but the potential for rights violations is often ignored or underestimated. Some advocates argue that biometrics can be particularly useful in electoral settings by potentially:(115)

• Improving voter registration and identification;
• Producing a credible electoral register; and
• Reducing electoral fraud.

Anonymity and encryption

Encryption and anonymity are meant to “provide individuals and groups with a zone of privacy online to hold opinions and exercise freedom of expression without arbitrary and unlawful interference or attacks.”(119) In the 2018, the UNSR on FreeEx observed that users encounter heightened challenges with digital security tools, exacerbated by conflicting perspectives between states and personal privacy:(120)

the challenges users face [in using these tools] have increased substantially, while States often see personal, digital security as antithetical to law enforcement, intelligence, and even goals of social or political control. As a result, competing trends and interests have led, on the one hand, to a surge in State restrictions on encryption and, on the other hand, increased attention to digital security by key sectors of the private Information and Communications Technology (“ICT”) sector.

As society’s reliance on digital technologies has increased, users have become increasingly aware of the value of encryption as a tool to protect private communications in the digital era. This is particularly true for users such as journalists, activists, and lawyers, for whom the protection of communications is not merely a personal but also a professional imperative. In parallel with the rise in digital surveillance and cybercrimes discussed above, encryption has become a protective tool for the average internet user rather than something specialised, technical, and out of reach, as it was a few years ago. The United Nations Special Rapporteur on Freedom of Expression has highlighted that “encryption and anonymity enable individuals to exercise their rights to freedom of opinion and expression in the digital age and, as such, deserve strong protection.”(121)

Simultaneously, the rise of social media as a powerful platform for communication has enabled greater anonymity. States, particularly law enforcement agencies, have begun to push back against this growing use of encryption and anonymity, ostensibly in the interest of safety and security. Many countries in Africa have relatively heavy restrictions on encryption, although Russia and parts of Asia have globally the heaviest restrictions.(122)

As challenges to privacy rise, so too will the need to secure anonymity and promote the use of encryption technologies, particularly for journalists, lawyers, activists, and others at risk of oppression. These technologies will continue to develop and become more sophisticated, but as they do, the threat of increased state intrusions in the private lives of citizens and attempts to weaponise and abuse such technologies are also likely to increase.

Artificial intelligence

The growing prevalence and use of artificial intelligence (AI), particularly publicly available generative AI tools such as ChatGPT and Microsoft Bing, are raising new questions about the widespread collection of personal information to both train these systems and to provide responses to user prompts and the resulting risks to data protection and privacy. Many of these tools have reportedly been trained on the entirety of publicly available information on the internet, which would include personal information shared on social media and other sites, without users having given consent for this use.

Efforts to regulate AI are also, as a result, increasing, most notably through the EU’s AI Act, which seeks to “regulate artificial intelligence (AI) to ensure better conditions for the development and use of this innovative technology.”(128) It also includes limitations on the use of biometric identification systems by law enforcement and seeks to enable data subjects to receive meaningful explanations about the use of these systems.(129) The European Parliament reached a provisional agreement on the Act in December 2023, setting the scene for it to be passed into law in the coming months.

The Right to Freedom of Expression

Recent trends indicate that the most significant threat to freedom of expression around the world is the criminalisation of online speech. Criminalisation is affected through the enactment of laws which are generally vague and broad and give governments a wide range of powers to declare certain forms of online expression as offences. In recent years, legislation relating to cybercrime, social media, and disinformation (or “fake news”) have become increasingly popular tools through which to do so. Journalists, political dissidents, and critics are particularly susceptible to these challenges and examples abound, particularly in Africa, of journalists being silenced, detained, and convicted on such laws. For example: Zimbabwe’s Data Protection Act criminalises the spreading of false information online,(130) and Botswana’s Penal Code criminalises publishing “alarming information”.(131)

A growing pandemic of mis- and disinformation

The rise of what has come to be understood as a global crisis of mis- and disinformation has been accompanied by harsh efforts to crack down on this kind of content by governments, with concomitant risks for the right to freedom of expression online. The consequences of disinformation are far-reaching and can cause significant public harm — such as hampering the ability of the public to make informed decisions or putting public health, security, or the environment at risk. The rapid and widespread proliferation of false information relating to the COVID-19 pandemic and climate change are pertinent examples of this.

Disinformation continues to poison the digital sphere creating serious risks for freedom of expression as states tighten controls. In 2023, Freedom House reported that global internet freedom declined for the 13th consecutive year.(132) AI tools have also become increasingly sophisticated and widely used in this regard, spurring an escalation of disinformation tactics employed by governments to manipulate online discussions in their favour.

The COVID-19 pandemic gave rise to an outbreak of disinformation, often referred to as an infodemic. This led to many countries to implement false information legislation. For example, South Africa implemented disaster management regulations that created content-related offences with respect to publishing statements surrounding COVID-19.(133) However, even prior to the pandemic, the criminalisation of false news has been popular in Africa:

• Zimbabwe’s Data Protection Act, which, as of January 2024 has been enacted but is not yet in force, criminalises the spreading of false information online. The Act states that any person who unlawfully and intentionally makes available, broadcasts, or distributes data to any other person concerning an identified or identifiable person knowing it to be false, with intent to cause psychological or economic harm, will be guilty of an offence. Civil society has raised concerns that this provision promotes self-censorship, and unjustifiably infringes on freedom of expression.(134)
• Towards the end of 2019, the Protection from Internet Falsehood and Manipulation Bill 2019 was tabled in Nigeria. The Bill seeks to prohibit a long list of statements including false statements of fact and statements that are likely to be prejudicial to the country’s security, public health, public safety, public tranquillity, or finances. Statements that prejudice Nigeria’s relations with other countries, influence the outcome of an election or referendum, incite feelings of enmity, hatred towards a person, or ill will between a group of persons would also be monitored, and those who utter such statements would be liable to fines and, possibly, imprisonment.(135)
• In 2020, Ethiopia passed legislation that increases jail sentences and fines for hate speech and the dissemination of disinformation. Similar to other disinformation laws, commentators have raised concerns about the legislation’s violation of freedom of expression.(136)

There are also growing concerns that the rise of AI tools is enabling the production and amplification of mis- and disinformation on an unprecedented scale and in ways that make identification and moderation of such content extremely difficult.(137) Freedom House has also documented the use of AI by governments to conduct propaganda and spread disinformation.(138)

Despite the alarming and current rise of disinformation and the often disproportionate responses from state actors that threaten freedom of expression online, there is some comfort in knowing that there are organisations, institutions and states making a concerted and decisive effort to address this unfortunate and harmful trend.

There is a corresponding trend that is seeking to overcome disinformation threats through education, media literacy, awareness, and dialogue. Despite negative forecasts, the rise of digital activism looks to play a critical and positive role in rerouting the current trajectory.

Efforts to address hate speech

The 2019 UN Strategy and Plan of Action on Hate Speech advises:

Around the world, we are seeing a disturbing groundswell of xenophobia, racism and intolerance – including rising anti-Semitism, anti-Muslim hatred and persecution of Christians. Social media and other forms of communication are being exploited as platforms for bigotry.  Neo-Nazi and white supremacy movements are on the march. Public discourse is being weaponised for political gain with incendiary rhetoric that stigmatises and dehumanises minorities, migrants, refugees, women and any so-called ‘other’.(139)

There is undoubtedly a need to counteract the above groundswell. However, states are quickly turning to criminalisation to address this, rather than addressing the systemic issues of perceptions, ignorance, privilege, and inequality. Hate speech is a vague term that lacks universal understanding, and legal provisions are often open to abuse and restrictions on a wide range of lawful expression.

A range of legislative developments are in motion across Africa, such as:

• South Africa’s Parliament passed the Prevention of Combating of Hate Crimes and Hate Speech Bill which aims to create new legal definitions and procedures to combat hate crimes and hate speech. (As of January 2024, the Bill had been passed by Parliament and is waiting to be signed into law.)
• The proposed Prohibition of Hate Speech Bill in Nigeria is another relevant example, but it was withdrawn after public outcry.(140)

However, international law standards and guidance are increasingly encouraging states to move away from sanctions and prohibitions towards more positive measures. ARTICLE 19, for example, emphasises that states should engage with the symptomatic causes of hate speech rather than adopting a singularly punitive approach.(141) The 2019 UN Strategy and Plan of Action on Hate Speech seeks to focus on the root causes and drivers of hate speech and to ensure effective responses that do not criminalise freedom of expression that should be protected. The plan lists a variety of commitments that UN entities should take, including:

• Monitoring and analysing hate speech.
• Engaging and supporting the victims of hate speech.
• Convening relevant actors.
• Engaging with new and traditional media.
• Using education as a tool for addressing and countering hate speech.
• Fostering peaceful, inclusive and just societies to address the root causes and drivers of hate speech.
• Developing guidance for external communications.

Continued disinformation and the promotion of hateful speech should be anticipated as our reliance on online spaces continues to increase and political polarisation continues to be amplified by automated online systems. However, there are parallel pushes to engage more meaningfully and substantively with hate speech and find ways that address hate speech without limiting freedom of expression.

Online violence against journalists, bloggers, and other professionals

In 2023, the UN warned of a concerning trend of the escalation of violence and repression against journalists and other communicators.(142) Harassment of journalists, bloggers, and other professionals is the most extreme form of media censorship and creates a climate of fear which impedes the free circulation of information, opinions, and ideas. In particular, the COVID-19 pandemic and coverage of climate change, biodiversity, and pollution have attracted threats and efforts to silence journalistic outputs.

According to a 2021 UNESCO discussion paper, women journalists are most impacted by threats and attacks, with 73% of women journalists surveyed saying that they have been threatened, intimidated, and insulted online in connection with their work and 30% having responded to online violence by self-censoring on social media.(143)

Journalists fulfil an important role in any society but are too often at risk, threatening their ability to fulfil their critical function as the fourth estate. A global survey conducted by the International Centre for Journalists and the Tow Centre for Digital Journalism shows that 20% of respondents describe their experience of online abuse as “much worse than usual” during the COVID-19 pandemic.(144) In the United States, 90% of journalists believe that online harassment is the biggest threat to their profession.(145)

The consequences of these attacks are significant for freedom of expression. A 2017 Reporters without Borders study by the Council of Europe further indicated that:(146)

• 31% of journalists water down their coverage of stories after being harassed.
• 15% of journalists drop the story.
• 23% of journalists don’t cover specific stories.
• 57% of journalists do not report that they have been the targets of online violence.

UNESCO’s research also found that in addition to large-scale attacks or extreme threats, the “slow burn” of lower but nearly constant levels of abuse also has insidious effects, causing PTSD, depression, and anxiety to drive journalists out of the newsroom.(147) Black, Indigenous, Jewish, Arab, and lesbian women journalists participating in the survey experienced both the highest rates and most severe impacts of online violence.

The harassment of journalists is a global issue and remains deeply entrenched. UN bodies are calling for protection, and civil society actors are assisting where they can. Still, there needs to be a far more concrete and legitimate effort, particularly by states, to ensure the safeguarding of journalists.

With the growing reach and influence of social media, new methods of harassing journalists are also becoming prominent. This includes, for example, cyber-harassment, online gender-based violence, and the use of Strategic Litigation Against Public Participation (SLAPP) suits to stifle and silence critics, leveraging either civil defamation or other legal strategies to bury critics in legal challenges.

Efforts to counter these new online threats can rely on a robust body of case law holding that journalists must be protected and enabled to carry out their jobs safely. In the important case of Brown v Economic Freedom Fighters in South Africa, for example, the High Court held that the failure of a political party to condemn its supporters’ harassment of and threats against a journalist violated the South African Electoral Code.(148)

Conclusion

Recent years have seen unprecedented online development, exposing emerging opportunities and threats. It is likely that the coming years will pose many of the same risks and opportunities for human rights, with new complexities related to the regulation of the online sphere arising that both enable and threaten freedom of expression and access to information.

In future, it is hoped that digital divides will decrease with improved access and increased efforts towards digital literacy. Threats to privacy are likely to magnify in quantity and intensity as the scale of datafication continues to increase and AI use proliferates. Freedom of expression will remain in a precarious position with misguided attempts to address legitimate concerns. There is a pressing need now, more than ever, to develop powerful advocacy strategies, establish impactful jurisprudence, and to equip people with the necessary knowledge and skills to be empowered to advocate for their rights. New technologies are consistently emerging and giving rise to new opportunities and threats. Important steps are being taken every day by ordinary people, digital rights activists, the international community, courts, and some states to ensure that the Internet remains a source of agency and development and that it becomes a safe space for all users to reach their full potential.

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• 8. Id.
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• 18. Id.
• 19. Id.
• 20. Access Now above n 5.
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• 24. ABLOGUI and Others v The State of Guinea, ECW/CCJ/JUD/38/23/22, 2023 (accessible at: http://www.courtecowas.org/wp-content/uploads/2023/12/JUDGMENT-ABLOGUI-V-GUINEA-ENG.pdf).
• 25. Global Freedom of Expression: Columbia University, ‘Bejarano v. Ministry of Defense’ (2023) (accessible at: https://globalfreedomofexpression.columbia.edu/cases/bejarano-ricaurte-and-others-v-ministry-of-defense-and-others/).
• 26. Access Now, ‘Who is shutting down the internet is Ukraine’ (2023) (accessible at: https://www.accessnow.org/who-is-shutting-down-the-internet-in-ukraine/).
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• 29. UDHR at Article 19.
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• 35. Id.
• 36. Netblocks, ‘Social media and messaging apps restricted in Zambia on election day’ (2021) (accessible at: https://netblocks.org/reports/whatsapp-and-social-media-restricted-in-zambia-on-election-day-18lpLY8a).
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• 44. Access Now, ‘#KeepItOn: government of Senegal must ensure open and secure internet access throughout the 2024 presidential elections” (2024) (accessible at: https://www.accessnow.org/press-release/open-letter-senegal-internet-elections-2024/).
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• 50. Id.
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• 53. There is some overlap between the formerly popular term of bloggers and the more recent term of influencers or social media users with large-scale followings that publish content in various forms online.
• 54. The UN’s General Comment 34 to the International Covenant on Civil and Political Rights (ICCPR) includes bloggers in its assessment of journalism, stating that any restriction on the operation of websites, blogs or any other internet-based systems are not compatible with the right to freedom of expression. See UNHRC, ‘General Comment 34 on Article 19: Freedom of Expression’ (2011) (accessible at: https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf).
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• 59. Id.
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• 66. Id at para 104. See also paras 54 and 96.
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• 71. Id.
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• 79. Id.
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• 89. New York Times, ‘How California’s New Privacy Law Affects You’ (2020) (accessible at https://www.nytimes.com/2020/01/03/us/ccpa-california-privacy-law.html).
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