K.S. Park’s presentation on internet shutdowns and international human rights standards on October 20, 2022 at the Freedom Online Coalition Taskforce for Internet Shutdowns session (attended by about 50 people including the representatives of 15 governments that are members of the Freedom Online Coalition) on the date when FOC issued a statement condemning internet shutdowns in Iran. https://freedomonlinecoalition.com/foc-issues-joint-statement-on-internet-shutdowns-in-iran/
There were two important court decisions recently with potential importance to the internet shutdown. Talking about these two cases will be good opportunities to talk about the present status and limitations of the internet shutdowns jurisprudence. ECOWAS Court struck down a Twitter ban in Nigeria. The Spanish Supreme Court struck down a ban on Women on Web, the website distributing medical abortion pills.
ECOWAS Court’s decision adds to a line of African court cases that struck down internet shutdown orders for lack of statutory basis rather than a substantive analysis. The worrying trend is that African countries may enact laws that provide legal bases for shutdowns, which is what we see in the India’s new Telecommunications Bill. This is important because most internet shutdowns take place in Asia and Africa.
The Spanish Supreme Court’s decision was on the reasoning that interference with online speech must be based on a judicial authorization. Although this case concerns an B2C website than a peer-to-peer platform or the internet, it will be a good persuasive authority that all internet shutdowns should be judicially based also. This is important as many shutdowns are done for the political purpose of shutting up dissident voices, and this new requirement will be a welcome addition to procedural safeguards on internet shutdown. However, several shutdowns have come from courts as in the cases of Turkey and Brazil.
Then, KS presented a primer on international human rights standard on internet shutdowns collating from various United Nations, European Court of Human Rights, and regional human rights bodies, taken from Open Net’s report.
Given the absolute languages used by international human rights bodies and regional and domestic courts, shutting down the entire Internet in any region is a clearly excessive measure — even if it is done for innocuous purposes of preventing cheating at examinations — since it shuts down the full variety of communications enabled by the Internet that are not related to the purpose of the shutdown, and is therefore deemed a violation of human rights. Likewise, blocking an entire social media platform also can never be a measure proportionate to the purpose desired. Blocking of a social media platform, the topic of this research effort, is especially more disproportionate than blocking of an ordinary website since the social media platform has much more diversity of authors and contents that are not related to the purpose of the blocking.
The only exception, out of Europe, is blocking of a special purpose platform such as music sharing executed for the purpose of protecting intellectual property rights but it may not be an exception after all because the breadth of communications on the music-only platform is not so wide as to make its blocking automatically excessive.
Even when social media platforms are shut down to respond to the fake news causing hate crimes against minorities, research indicates that shutdown only makes the situation more volatile and takes away information that can save lives. As AccessNow states, “Whether they are justified as a measure to fight “fake news” and hate speech or to stop cheating during exams, the facts remain the same: internet shutdowns violate human rights.”
Furthermore, as pointed out by European and American human rights bodies, Internet shutdown or social media platform works as a “prior censorship” as to the contents that have not yet appeared online or on that blocked website. The prior censorship argument has been effective in invalidating shutdowns and blockings in major court cases.
Having said that, surprisingly, there are not many cases that decided substantively that internet shutdowns were unconstitutional in Asia or Africa. All cases in Africa so far were decided on procedural grounds. Even in 2020, Jammu&Kashimir, while the Court accepted that access to the internet could be restricted on grounds of State security, it upheld the need to comply with constitutional safeguards, including testing the proportionality of these measures, and subject to periodic administrative review.
The Draft Indian Telecommunication Bill, 2022, and in particular Sections 24 and 25, grants unrestricted powers to both the Central and State Governments to suspend and limit telecommunication services when they deem it “necessary or expedient” to protect public safety. Internet shutdowns of any kind are a violation of human rights and should not be authorized. Worse still, the Draft Bill would allow government officials to arbitrarily impose network disruptions at their discretion, without any meaningful safeguards, limitations, or remedies to ensure transparency, accountability, and redress.
However, condemning the practices as infringing is relatively easy compared to crafting model laws that prevent them. As said before, the network operators or Internet Service Providers (ISPs) are almost always under the licensing by the state because the physical layer upon which Internet is provided consists of mobile telephony, local cable TV network or fiber network all operated under license. Wireless carriers require exclusive bandwidth licenses lest air waves do not interfere with one another and wired carriers require easement through underground conduits and on public electric poles through which broadband lines are installed whether they are coaxial cable, optical fiber or telephone lines. In exchange of these licenses on public properties, ISPs are imposed heavy regulatory frameworks under which they owe public interest obligations. The laws are intentionally broadly worded as ‘national security’, ‘combating illegal material’, ‘public security’, ‘regulatory compliance’, ‘conditions of license’ in order to ensure their compliance with a broad range of situations. Also, as the government is the putative guardian of public interest, whether ISPs cooperate with government requests often become important indicia of whether they uphold public interest.
Therefore, governments are easily tempted to use this easily accessible regulatory power to effect shutdowns and blockings. As seen in the above cases, many shutdowns and blockings are effected under the name of public security, public safety, license enforcement, crime prevention, warrant enforcement, etc. Indeed, “Armed with a hammer, it is tempting for governments to regard the internet as a nail(Chatam House, “Asia’s Internet Shutdowns Threaten the Right to Digital Access”, 18 February 2020).”
The challenge is how to craft a law that finds a balance between public need to control licensed entities and government’s temptation for abuse. If the operator is truly in violation of regulation or license conditions or otherwise derelicts its public interest duties, the state should be able to take punitive measures against the operator without forcing it to take down the network.
In order to address such concern infrastructure-wise, as India’s case shows, centralizing all shutdowns through one national process will be important otherwise regional and local governments will engage in ‘precautionary measures’ for reasons of parochial politics. Also, as China’s case shows, ISPs must be either not owned by the state or must be otherwise independent from the state at least in form in order to prevent unexplained shutdowns from taking place without notice.
Also, the shutdown powers must be constrained explicitly by the statutes enabling the relevant regulatory authorities so that shutdown is ultimately not resorted to. For instance, as in Australian law and American law, the power to cancel ISP licenses is limited to non-payment of license fees and any other violation of license condition or regulatory noncompliance is subject to monetary or civil penalties. This way, access to Internet is preserved without sacrificing public control over ISPs.
Even when license is revoked, it should not lead to the stoppage of the services. This may mean that public “take-over” may be necessary to continue the services. Also, the state should never be allowed to order shutdown of multiple ISPs.
If for reasons unique to the region, the shutdown power is somehow not abolished, it is important that the regulatory structure is not abused for suppressing media freedom. For instance, license revocation should not be for the reason of servicing or failing to block certain content. The challenge here is that the governments are not very transparent about the reason for shutdowns. To address mismatch between actual reasons and announced reasons, it will be preeminently important to require judicial approval for any shutdown order as in Kazakhstan. Such requirement for the judiciary’s involvement will naturally include appeal process.
Please find attached the report here: https://www.opennetkorea.org/wp-content/uploads/2022/10/Internet-shutdown-report-final.pdfInternet-shutdown-report-final