It has been almost a year since internet access was declared a human right, yet infringements continue.
Between January and March 2017, internet in two English-speaking regions of Cameroon was cut off for almost 100 days following protests over an attempt to force the use of French in schools and courtrooms. In late April, the government blocked social media in India-administered Kashmir on the grounds that it was “being misused by anti-national and antisocial elements”.
These cases came just months after Freedom House, the US-based freedom of expression watchdog, said that internet freedom across the globe had declined for a sixth consecutive year.
The organisation said governments are specifically targeting messaging applications like WhatsApp and Telegram in a bid to control the flow of information.
In a resolution passed in July 2016, the UN Human Rights Council described the internet as having “great potential to accelerate human progress”. It also condemned “measures to intentionally prevent or disrupt access to or dissemination of information online”.
The non-binding resolution, adopted by more than 70 countries, noted “that the exercise of human rights, in particular the right to freedom of expression, on the internet is an issue of increasing interest and importance”.
But understanding what this means for internet users can be difficult. To what extent is internet access a human right? What can the United Nations do if a government blocks social media? Can there ever be a legal justification for controlling the net?
We spoke to David Kaye, the UN’s Special Rapporteur on freedom of opinion and expression, to understand it better.
Al Jazeera: What does it mean to say ‘the internet is a human right’ and do all countries subscribe to this idea?
Increasingly over the last several years the Human Rights Council [UNHRC], which is the central human rights body within the UN system, has said that rights which the individual enjoys offline apply online as well. However, there’s nothing in human rights law or treaties that says everyone has a right to the internet.
But it does say that in the universal declaration of human rights and the international covenant on civil and political rights. They both have an Article 19 which sets the standard and says that everyone has the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any media.
So, if it’s through any media that we have this right to self-expression, that includes the internet. So when a state shuts down the internet or blocks internet in any way that’s clearly a direct interference with freedom of expression.
States have the ability to impose restrictions on freedom of expression, but even in human rights law those need to be narrowly drafted, they need to be legal, provided by and within laws, and necessary to protect a specific objective.
Al Jazeera: Can there be a justification for states to block certain sites or social media or to cut the internet?
The rule in human rights law is that any restriction on freedom of expression has to be provided by law, necessary, and proportionate in order to protect a specific objective. These objectives are basically the rights and reputations of others, national security and public order, and public health and morals. When we see a state block a website or take down the internet, there are questions we need to ask. One is about the law. It’s not enough for a state to have a law that allows the blocking of a website.
One of the problems is that rising authoritarianism is restricting freedom of expression offline as well as online.
That law needs to be drafted in such a way that doesn’t give the government unreviewable discretion. It needs to involve the courts. There needs to be a judicial element on the restriction of expression. There needs to be a law that is understandable by the people. We need to ask if this is necessary for national security and public order.
Often, when a state blocks access to a specific website, the state doesn’t show why it’s necessary to do that to meet a legitimate objective like national security. We need to be encouraging them to show why it’s necessary and asking if they have alternative means to deal with threats to national security and public order.
Most of the time there are things the state can do other than blocking the internet. It needs to be proportionate. Blocking access to the internet harms people who need to communicate for financial or health reasons. It is a disproportionate response to a perceived threat. These restrictions very rarely show necessity and in most cases are disproportionate.
Al Jazeera: When a state cuts the internet or blocks sites, what role does your office play in establishing if it’s justified?
The Human Rights Council appoints different monitors to evaluate issues around the world and they appointed me to look at freedom of expression. That means we will communicate directly with the government when we have information about restrictions to freedom of expression. Sometimes, governments don’t respond to us and if it’s an urgent issue we might do a press statement about it, but part of our role is to make sure that states understand what the rules are in human rights law.
We can’t change states’ behaviour but can encourage them to behave and adopt laws and policies that are consistent with human rights obligations. We try to make it a dialogue with states, and it’s not always successful but that’s what we hope to do.
Al Jazeera: What is currently happening with the government of India for instance? Are you communicating with them over the restrictions in Indian-administered Kashmir?
We haven’t raised our concerns with them yet, but I expect we will pretty soon. We’re trying to gather information on the nature of restrictions, so the first thing we would do is communicate with the government through their mission in Geneva. But this is also a situation where it’s been going on for several years. It might be the kind of situation where we would want to raise it publicly, as well. We haven’t done that yet but we will soon.
Al Jazeera: Cameroon cut the internet in some regions for almost 100 days in response to protests. There was some criticism that the UN was not doing enough.
It was similar in that we communicated directly with the government. We never received a response from them, but that’s usual. We made a public statement on the issue, and we [try] to keep our concern public. There’s very little I can do other than identifying a threat against freedom of expression and encouraging the said countries to meet their obligations, as well as supporting individuals who are being denied access.
It’s not the UN alone that can do this, it needs to be states and private actors like big telecommunications companies and internet service providers, social media and service providers that might be active in the country.
Al Jazeera: Service providers are the middle ground between governments and the people, and often control the internet. Do you communicate with them and are people able to hold service providers to account when they cut the internet or block certain sites?
We get in touch with companies pretty regularly. They don’t have a lot of opportunity to resist government restrictions, so if the government says to shut down the internet in a place, it’s hard for them to say no. We’re trying to encourage those companies to push back where they can and demand judicial orders. They should ask questions so they don’t just do it right off the bat. They need to make the countries explain themselves at the very least, to mitigate the risk.
Al Jazeera: What incentives do companies have to push back against governments?
These companies lose money during internet shutdowns. Putting aside the freedom of expression, shutdowns cause harm to companies. So, it would suit them to be exercising whatever economic leverage they might have to push back these restrictions. They don’t have a whole lot of flexibility in responding, so it seems like these companies might be on the side of the government.
What we’re trying to do in my next report to the [UNHCHR] in June, is to encourage companies to do more during a shutdown, to push back the government and raise more issues. We have to do a lot of work to get companies to think in those terms.
Al Jazeera: The internet is a “human right” and yet it’s being cut more than ever – is this not a contradiction? Is it a “liberal” fantasy that the internet is this free space?
On one hand, states are saying on the Human Rights Council that online rights are equivalent to offline but we’re seeing an increasing number of restrictions. This is a contradiction and I think that those of us who are advocating for it, or journalists and activists, need to be constantly pushing for laws that protect this space and demand that governments meet their obligations in digital spaces just as in non-digital spaces.
One of the problems is that rising authoritarianism is restricting freedom of expression offline as well as online. It’s an uphill battle. We need to encourage companies to follow the rule of law. When a state says to take down this post or block this website, we should hope that they’re pushing back and behaving according to human rights norms.