The increasing number of internet blackouts worldwide is cause for concern
While internet blackouts first found favor in situations of political unrest, over the years, the practice has expanded to restrict issues not involving large scale opposition or violence. Access Now and the #KeepItOn Coalition recorded that in 2019, 1706 days of internet access had been disrupted by 213 shutdowns in 33 countries. These blackouts involve the deliberate disruption of internet services or electronic communications within specific geographic boundaries through complete or partial shutdowns. Disruption can occur either in the form of outright cutting off of the internet or by speed throttling, which is more subtle and may go undetected.
Governments around the world have also been using the COVID-19 pandemic to increase surveillance and to censor critical speech.
Access to Internet as a Human Right
In furtherance of the right to freedom of expression, access to information, and the right to form associations and to assemble as laid down in a number of international human rights instruments, the UN Human Rights Council (UNHRC) adopted a Resolution for the promotion, protection, and enjoyment of human rights on the internet. Since then, the UNHRC and the UN’s Special Rapporteur on Freedom of Expression have reported and expressed concern against a rising number of disruptions to internet services without a legal basis. The UN has, through a Resolution, declared access to the internet as a human right under Article 19 of the Universal Declaration on Human Rights, and stated that “measures that disrupt internet access or that intentionally prevent or disrupt access to or dissemination of information online” amount to violations of human rights.
The freedom of expression is also constitutionally protected in most liberal and democratic countries, with provisions for reasonable restrictions harmonized with international law. Not only do internet blackouts violate the freedom of expression, they also affect accompanying constitutionally protected rights such as the right to form associations, the right to assemble, and the right to participate in government.
Restrictions on the Freedom of Expression
Under Article 19(3) of the ICCPR, the freedom of expression is not an absolute right. However, limitations can only be placed under legitimate circumstances, fulfilling three conditions. The first of these, is if the restrictions are provided by law. The UNHRC has elaborated on this to clarify that such law must be clear, consistent with international human rights, must provide sufficient guidance on remedies for non-compliance, and that the State must demonstrate the legal basis for such restrictions. The second justification to restrict the freedom of expression is if such restriction is necessary for the protection of rights and is proportionate to the goals sought to be achieved. Lastly, free speech may also be restricted for reasons of national security or public order.
Since national security and public order are terms that remain largely undefined and wide, States often use these provisions to justify internet shutdowns. Countries that have used shutdowns during protests in recent years include Bahrain, Cameroon, Democratic Republic of Congo, India, and the United States, among others.
The Role of Telecom Companies
The 2020 Ranking Digital Rights Corporate Accountability Index noted that none of the telecom and tech companies it ranked came close to receiving a passing grade on international human rights-based standards of transparency and accountability, when their policies were evaluated in relation to their impact on the freedom of expression.
Even though shutdowns are ordered by governments, telecom companies owe an obligation to find ways to uphold human rights under the UN Guiding Principles on Business and Human Rights. Shutdowns have lasting impacts on political participation and democracy, with companies being complicit in human rights violations by making the flow of information difficult. In 2019, MTN Sudan’s decision to comply with the transitional military government’s orders was brought before a court, which found in favor of the petitioner, and restored internet access to the entire country.
Litigation Relating to Internet Blackouts
Over the last few years, instances of litigation against unjustified internet shutdowns have also taken place in a number of other countries. For instance, in Zimbabwe, a chamber application was filed relating to the internet shutdowns that were taking place in January 2017. In an interim ruling, the shutdown order was declared illegal by a court, which stated that the government had exceeded its mandate in the face of civilian protests. The case, however, was decided on procedural grounds, with the court failing to acknowledge the human rights aspect of such measures.
Parts of Kashmir, in India, also saw internet blackouts that commenced in 2019. In Bhasin v Union of India and Azad v Union of India, the Supreme Court found that indefinite restrictions on internet access would be impermissible, and that such suspension must be proportionate and must not be extended beyond necessary durations. Despite this, while limited internet access was granted in Kashmir in March 2020, 4G access was restored only in February 2021 in these regions.
Unfortunately, no courts have gone so far as to condemn internet shutdowns completely in a decisive manner.
The Way Forward
The overall trend appears to be one of increased and disproportionate use of restrictions by governments, including in countries that are considered democratic and liberal. Governments have been using such restrictions to quell protests by citizens or to influence elections. Given the rising intolerance for opposing perspectives, steps in the right direction involve holding telecom providers accountable for the role they play in enforcing such shutdowns, curbing disproportionate shutdowns by creating accountability mechanisms, creating effective redressal frameworks, better documentation of all forms of shutdowns, promoting independent fact checking, and formulating alternatives to tackle legitimate ends, that do not involve complete blackouts or throttling. Signatories to international agreements must honour their commitment to human rights protection and come together to achieve these objectives.