Introduction

The internet was created to facilitate the free flow of information; it now allows people to instantaneously access information and services, to communicate, and to share knowledge and ideas.  As such, it offers an array of opportunities for the realisation of human rights and has — in many instances — been a catalyst for the empowerment of marginalised members of society.

However, impediments to the internet’s use for the advancement of human rights seem to be growing.

“Restrictions to access and internet disruptions are eroding the right to freedom of expression and associated rights.  Suppressive tactics by governments and private actors cause significant challenges in accessing information online.”

The unjustifiable restriction of access to the internet is a violation of human rights.  This resource outlines some of the prevalent harms to internet access and provides guidance on how best to secure fundamental rights and freedoms in the digital age.  This topic includes internet shutdowns, unjustifiable limitations on access to content through blocking and filtering, the implications of social media taxes, and more.

Sub-Topics

  • Internet Shutdowns

Summary modules

Media Defence has developed a series of summary modules that provide an overview of the ways in which access to the internet and online content are commonly restricted around the world.

Perhaps the biggest existing obstacles to more widespread access to the internet are related to infrastructure and costs.  However, false news and misinformation are also often used as justifications for partial restrictions on access to online content, as is national security.  The following summary modules provide a brief overview of some of these challenges.

  • Summary Module 3: Access to the Internet in Africa
  • Summary Module 8: ‘False news,’ misinformation and propaganda in Africa
  • Summary Module 9: National Security in Africa

Advanced Modules

Media Defence’s series of Advanced Modules on Digital Rights and Freedom of Expression online provide a more comprehensive review of current developments and jurisprudence in the field of digital rights.  In combination with the Summary Modules above, these resources form the basis of our introductory and advanced litigation surgeries.  The Advanced Modules have been designed to assist lawyers representing journalists, bloggers and other online media in East, West and Southern Africa.  They include emerging trends in digital rights as well as tools and advice on litigating cases at the national and regional levels.

“These Advanced Modules explore developments in how access to online content is restricted and criminalised around the world, including setting out applicable international human rights standards and identifying practical ways to balance the competing interests of policing criminality and protecting free speech.”

  • Advanced Module 2: Restricting Access and Content in Africa
  • Advanced Module 3: Criminalisation of Online Speech in Africa
  • Advanced Module 5: Trends in Censorship by Private Actors in Africa

Key case law

Many courts around the world have found that disruptions to internet access constitute prior restraint, which is generally considered contrary to human rights standards.  For example, a ground-breaking case in the ECOWAS Community Court of Justice declared that the internet shutdown implemented by the Togolese government in 2017 was illegal.  However, this remains a battle still to be fought in many jurisdictions today.

With regard to content, a growing body of jurisprudence indicates that intermediaries should be insulated from liability for content posted by users on their platforms, unless they fail to remove illegal content after being made aware of it, or are in some way active in its publication.  Legislation regarding criminal content, such as hate speech or threats to national security, differs markedly across jurisdictions.

  • Kalda v Estonia (2016): the European Court of Human Rights held that the right of the applicant — a prisoner — to freedom of expression had been violated through the refusal to grant him access to internet websites containing legal information, as this had breached his right to receive information.
  • Delfi AS v Estonia (2013): the European Court of Human Rights found that an online news portal was liable for offensive comments they allowed to be posted below one of their news articles.
  • Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary (2016): the European Court of Human Rights found that internet portals assume duties and responsibilities particularly in the context of offensive and vulgar comments — even if the speech is not unlawful.
  • Tanzania v United Kingdom (2017):  the European Court of Human Rights found that although Internet Service Providers (ISPs) perform an important function in facilitating access to information, ISPs should not be obliged to monitor content or proactively investigate potential defamatory remarks posted on their sites.
  • Shreya Singhal v Union of India (2012): the Supreme Court of India found that intermediaries are only liable when they have received actual knowledge from a court order, or have been notified by the government, and subsequently failed to remove or disable access to the information.
  • María Belén Rodriguez v Google (2014): the Supreme Court of Argentina held that search engines are under no duty to monitor the legality of third-party content to which they link, and only in exceptional circumstances could they be required to disable access.
  • Chavunduka & Another v Minister of Home Affairs & Another (2000): the Zimbabwe Supreme Court found that a law criminalising the publication of false statements was unconstitutional on the basis that in being too vague it exerted an unacceptable ‘chilling effect’ on freedom of expression.
  • Federation of African Journalists & Others v The Gambia (2018): the ECOWAS Court of Justice delivered a landmark judgment that the rights of four journalists had been violated by state authorities when security agents arbitrarily arrested, harassed and detained them under inhumane conditions, and forced them into exile for fear of persecution.
  • WASHLITE v Fox News (2020): the Washington Superior Court found that Fox News’ repeated claims that COVID-19 was/is a hoax were protected under the freedom of expression protections of the First Amendment.
  • United States v Alvarez (2012): in the majority opinion of the United States Supreme Court, Justice Anthony Kennedy wrote that “[t]he remedy for speech that is false is speech that is true.  This is the ordinary course in a free society.”
  • Mukong v Cameroon (1994): the United Nations Human Rights Commission held that the arrest of a journalist on national security grounds for criticising the President and government of Cameroon was unjustified and a violation of the journalist’s freedom of expression.
  • Constitutional Rights Project and Civil Liberties Organisation v Nigeria (1998): the African Commission on Human and Peoples’ Rights found that no situation could justify a wholesale interference with freedom of expression, as was the case with the mass arrests and banning of publications that followed the 1993 presidential elections in Nigeria.
  • New York Times Co. v United States (1971): the United States Supreme Court rejected a request for prior restraint on the basis that it may only be allowed in extreme circumstances, and that ‘security’ could not be provided by guarding state secrets at the expense of informed representative government.
  • Bhasin v Union of India; Azad v Union of India (2020): the Supreme Court of India found that freedom of speech and expression and the freedom to practice any profession or occupation over the medium of the internet enjoys constitutional protection and that suspending internet services indefinitely is impermissible.
  • Ahmet Yıldırım v Turkey (2012): the European Court of Human Rights held that a blocking order on a website hosting platform produced arbitrary effects, and that blocking segments of the internet for whole populations or segments of the public can never be justified.
  • Konaté v Burkina Faso (2014): the African Court overruled the conviction and harsh penalties levied on a journalist for defamation relating to news articles alleging corruption of a state prosecutor, and found that the conviction was a disproportionate interference with the journalist’s right to freedom of expression.
  • Başkaya and Okçuoğlu v Turkey (1999): the European Court of Human Rights found that the convictions and sentencing of an author and publisher on charges of disseminating propaganda against the indivisibility of the state were disproportionate to the aims pursued, and there not necessary in a democratic society.
  • Good v Republic of Botswana (2010): the African Commission on Human and Peoples’ Rights found that a professor’s right to freedom of expression had been violated when the state deported Mr Good on national security grounds for the publication of an article critical of Botswana’s presidential succession.
  • Media Council of Tanzania & Others v Attorney-General of the United Republic of Tanzania (2019): the East African Court of Justice found that sections of a law that criminalised false news and restricted the types of news or content that may be published were vague, unclear and imprecise, and thus in violation of the EACJ Treaty.
  • Google Spain SL v Agencia Española de Protección de Datos (2014): the Court of Justice of the European Union ruled that the right to be forgotten means that personal information that is “inadequate, irrelevant or no longer relevant, or excessive” must be erased by the search engine, but that the right should not apply to information that is relevant for the public interest.
  • Google LLC v Commission Nationale de l’Information et des Libertés (2019): the Court of Justice of the European Union found that a de-listing order made in a member state of the EU did not mean that search results had to be removed from all the search engine’s domain name extensions globally.
  • Camera di Commercio, Industria, Artigianato e Agricoltura di Lecce v Salvatore Manni (2017): the Court of Justice of the European Union dismissed a request to be “forgotten” from a public company register.

Factsheets

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Further Resources