Internet Access as a Derivative Component of the Freedom of Expression

by | Jan 20, 2021

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About Mwai Daka

Mwai is a postgraduate student at the University of Law, Bristol. He is currently a Regional Correspondent at the Oxford Human Rights Hub. He completed an MA in Politics from the University of Sheffield in 2016. His main political and legal research interests are displacement, labour law, environmental law, democracy, comparative constitutionalism, and human rights.

Citations


Mwai Daka, “Internet access as a derivative component of freedom of expression” (OxHRH Blog, January 2021) <https://ohrh.law.ox.ac.uk/internet-access-as-a-derivative-component-of-freedom-of-expression> [date of access].

The judgement in the case of Amnesty International Togo v The Togolese Republic [2020] asserts access to internet is a “derivative” right within the context of the right to freedom of expression. Therefore, any interference with accessing internet services must be provided for by a law specifying grounds for such interference.

In August 2017, several protests broke out in Togo. The aim: to call for term limitations upon the Presidency. Protestors also claimed that their freedom of expression, particularly the right to search and receive information freely, was violated. This is after two major internet operators, Togocel and Moov, became inaccessible. The Togolese government ordered them to restrict services. Provisions of the African Charter on Human and People’s Rights at Article 9(1) state: “Every individual shall have the right to receive information.” Article 9(2) provides “Every individual shall have the right to express and disseminate his opinions within the law”. This means people have the right to seek and receive information and to express and disseminate opinions.

Under a narrow interpretation, access to the internet is not a fundamental human right. Nevertheless, internet service provides a platform to enhance the exercise of freedom of expression and speech – and potentially a range of other developmental, socio-economic rights. On this basis, the ECOWAS court asserts internet access is a derivative right, that is, a component of the exercise of the right to freedom of expression. Put simply, having internet access is intricately linked to freedom of speech which can also be viewed to encompass freedom of expression. Therefore, internet access is complementary to the enjoyment of freedom of expression.  Consequently, access to internet and the right to freedom of expression should be deemed to be an integral part of human rights requiring protection by law, and so make internet access violations actionable.

The State of Togo argued that it was necessary to restrict internet access to protect national security, because the protest in Togo had the potential to degenerate into civil war. Nevertheless, the ECOWAS court holds that restricting internet access must be done in accordance with the law. There must exist a national law, guaranteeing the exercise of this right, whilst providing the conditions under which it can be derogated. In the case of Togo, no such law existed, therefore the derogating of certain rights in Togo was not done in accordance with the law.

This precedent has wider implication for other countries like Zimbabwe where Econet Wireless Zimbabwe, the largest mobile phone operator in Zimbabwe, was directed by the government to shut down all internet access from January 15th to January 16thin 2019, following protests due to an increase in gasoline prices. The government restricted internet access under the Interception of Communication Act (ICA) 2007. This resulted in a High Court decision wherein Justice Tagu held that a shutdown of the internet was not authorized by the ICA as it only dealt with interception of communication and not the shutdown or suspension of internet services.

However, in the case of Zimbabwe, the judgement fell short on the issue of whether internet shutdowns or suspensions infringed on the right to freedom of expression. In this context, the ECOWAS court’s interpretation of internet access as a derivative right contributes much to the understanding of internet access in relation to freedom of expression.

Moving forward, it is hoped the ECOWAS court judgement will inform regulation of other kinds of internet interference.

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