By: Diana Tuon Sposito, Junior Research Associate, PILPG-NL
The right to information is one of the rights protected under the scope of the fundamental human right to freedom of expression. Respecting this right is essential for the enjoyment of several other rights, including cultural, social, and economic rights. However, people’s right to information may face a threat of violation when state authorities arbitrarily shut down the Internet, which happens more frequently than imagined. In this sense, this article analyzes the lawfulness of limiting the right to information in the cases of the worldwide phenomenon of Internet shutdowns.
The Right to Information
Under international human rights law, the fundamental human right to freedom of expression includes the right to have an opinion, which is the only unrestrictable right, as well as the right of freedom to seek, impart and receive information and ideas at any form.
As provided by Article 19 of the International Covenant on Civil and Political Rights (ICCPR), the right to freedom of expression can only be limited if based on one of two grounds: either to respect the rights or reputations of others; or to protect national security, public order, or public health and morals. However, even if falling under one of these two situations, for a restriction to be lawful, it needs to pass in the limitation test.
According to the General Comment 34 of the Human Rights Committee, the basic principles that regulate a lawful restriction are (1) legality, which requires the restriction to be prescribed by law; (2) legitimate aim, meaning that it needs to fall under a legitimate public interest; (3) necessity and proportionality ; and, finally, (4) the limitation has to be an exceptional measure.
The Limitation Test
Moreover, claiming a threat to national security or public safety so to legally shut down the Internet does not suffice. State parties to the ICCPR cannot invoke such grounds to suppress public information when it would not harm national security.
Furthermore, The Human Rights Council (HRC) has manifested that access to information is critical in times of crisis, and that state authorities need to make exceptional efforts to protect journalists’ work to impart information. The HRC has also claimed that broad restrictions on access to the Internet cannot be based on the grounds of public order or national security.
In that sense, a limitations test has been established to assess the legality of a restriction to the rights protected by freedom of expression. For a restriction of the right to information to be considered legal, it must satisfy two conditions. First, the restriction must be extremely necessary, and the only possible manner to achieve protection for the situation that generated the need. Second, the restriction has to be proportionate and the least intrusive option possible, with regard to considering the form of expression and the objective it wants to achieve.
Internet Shutdown
Internet shutdowns are intentional blockings or interruptions of Internet access or Internet-based communications for a specific population, location, or mode of access. In this way, the Internet becomes inaccessible or unavailable, either nationally or locally. This usually occurs in an attempt by a government to control the flow of information within a specific locality.
In 2019, 1,706 days of Internet access were disrupted by 213 Internet shutdowns across 13 states. The most common reason for Internet shutdowns that year was protests. Other common justifications are public safety, national security, and disrupting fake news.
During the COVID-19 pandemic, for instance, states like India, Bangladesh, and Myanmar have shut down the Internet as a measure to control the flow of information during the pandemic. According to ARTICLE 19, this was an attempt to diminish criticism of decisions taken during this period, hide corruption, extend the deadline for response, and a non-prioritization from governments to inform and be transparent.
However, in most states that adopted internet restrictions as a way of dealing with the pandemic, the restrictions were not lawful since these measures were neither properly based on any of the grounds allowed, nor passed the limitation test. Considering the relevance of this pandemic, blocking the Internet refrained people from having access to updates on health measures, working remotely, or even communicating with family members. This means that the measures had a direct impact on the people’s right to information, and also stopped the media from informing its audience.
Moreover, it was not necessary nor proportionate, since there are less intrusive measures to deal with the pandemic, such as improving health facilities and giving information about precaution, which could have also been made available through the Internet.
Conclusion
Not only during the COVID-19 pandemic but in all circumstances, international law does not allow for unlimited restrictions on the right to information. In this sense, internet access providers or governments cannot block, slow down, or discriminate internet traffic associated with particular content as a way of restricting the user’s right to information indiscriminately.
Any restriction to the right to information needs a justification under one of the two grounds provided by Article 19, as well as passing the limitation test.. In most cases, internet shutdowns constitute a violation of the right to freedom of expression since they unlawfully restrict people’s right to receive, as well as the media’s right to impart, information of any kind.