Litigators target national internet shutdowns
When in January 2019 a judge ruled that the Zimbabwean government’s internet shutdown during the country’s protests that month had been illegal, Kuda Hove, one of the lawyers who worked on the case, was disappointed. The case was won on procedural grounds, without mentioning any of the human rights violations that Hove says the internet blackout caused. As a result, the verdict would not set the desired precedent for future cases.
Hove, who was then with the Media Institute of Southern Africa that had brought the case alongside the group Zimbabwe Lawyers for Human Rights, and his colleagues were convinced that Zimbabwe’s High Court would drag its feet if they challenged the shutdown on the basis of freedom of expression, which is constitutionally guaranteed in Zimbabwe. They anticipated a wait of up to ten years for a verdict.
Though eager to prove the unconstitutionality of the government’s order, the team also wanted a swift ruling on the – at that point ongoing – shutdown. As a compromise, they challenged the way the shutdown had come about. ‘It was a catch-22,’ says Hove, now a policy officer at Privacy International. He explains that the ruling is very specific, which avoids it being turned into jurisprudence to challenge future internet shutdowns.
There are many legal tools that telecom companies – the usual executor of shutdowns – can use to challenge censorship orders
General Counsel, Access Now
The Zimbabwe case is one of a rising number of successful challenges over internet shutdowns – where national governments prevent citizens’ access to the internet for days, weeks or even months at a time. Most recently, judges have ruled against government-ordered shutdowns in Kashmir, Papua and West Papua, and Togo.
In late June, the Economic Community of West African States (ECOWAS) Community Court of Justice ruled that Togo’s internet shutdown in September 2017 was a violation of the right to freedom of expression. Such wins are important for the wider region, says Nankunda Katangaza, Vice-Chair of the IBA African Regional Forum and co-founder of the African Law & Tech Network. ‘It sets an important precedent for all other ECOWAS member states and across the continent where internet shutdowns are a regular occurrence.’
‘This ruling could have a significant impact on the outcome of those cases and, consequently, on the frequency of internet shutdowns on the continent,’ adds Katangaza.
Some cases have been won by challenging the basis of the internet shutdown, as in Zimbabwe, while others have been guided by human rights arguments. Yet, according to Bach Avezdjanov, Program Officer with the Columbia Global Freedom of Expression project, which documents such cases, none of these verdicts condemn general internet shutdowns completely. ‘Regrettably, no court has gone as far as [to] rule in such a decisive manner,’ he says.
And while law suits against internet shutdowns are on the rise, of the 196 shutdowns in 2018, only five new cases were recorded to have been taken to court that year, according to global digital rights organisation Access Now. In the first half of 2019, a further five were documented.
Non-governmental organisations such as Access Now and Human Rights Watch, both part of the #KeepItOn campaign against internet shutdowns, report that governments increasingly order blackouts that obstruct the free flow of information. There were at least 213 internet shutdowns in 2019 alone, according to data from Access Now. These shutdowns are often put in place under the guise of national security or to fight the spread of misinformation.
Over half of last year’s shutdowns on Access Now’s list were recorded in India. Venezuela and Yemen, with 12 and 11 blackouts respectively, occupy second and third place.
Not all shutdowns are blanket network outages, with some targeting only specific websites, social media or messaging applications. Another tactic is to ‘throttle’ the internet, which slows it down significantly and makes it near impossible to post or share anything online. This tactic has been reported regularly in Kazakhstan, where it coincides with speeches from rivals of the country’s President being broadcast on Facebook.
Shutting down the internet leads to a range of other rights violations, on top of that relating to the right to freedom of expression, says Antony Crockett, a senior consultant at Herbert Smith Freehills. ‘An internet shutdown may have various adverse human rights impacts, perhaps most obviously on freedom of expression but also, given how much we rely on the internet in all aspects of our daily lives, on the right to work, the right to education and the right to health,’ he says.
While shutdowns are mostly ordered by governments, this does not absolve telecoms companies of their responsibility to uphold human rights under the United Nations Guiding Principles on Business and Human Rights.
In several cases, telecoms companies have been the subject of litigation, despite arguing they had no choice but to comply with local laws and government orders. ‘The potential for tension with the responsibility to respect human rights is obvious; in these circumstances, however, the Guiding Principles say companies should still seek to find ways to ensure respect for human rights,’ says Crockett.
Peter Micek, General Counsel at Access Now, says there are various ways for companies to uphold human rights for their users. ‘There are many legal tools that telecom companies – the usual executor of shutdowns – can use to challenge censorship orders, transparently report on disruptions, and limit the reach of information controls. These are found in national law, telecom regulations, and contractual provisions.’
Micek says that efforts to hold governments accountable for their orders to telecom companies have found some success in national and regional courts. ‘We welcome more companies to participate in such litigation and bring lawsuits themselves,’ he adds.