Columbia Global Freedom of Expression seeks to contribute to the development of an integrated and progressive jurisprudence and understanding on freedom of expression and information around the world. It maintains an extensive database of international case law. This is its newsletter dealing with recent developments in the field.
Community Highlights and Recent News
● Internet shutdowns in India 2022. SFLC.in has published a new report Let the Net Work which documents 75 internet shutdowns in 2022 in India resulting in economic losses of an estimated $174.6 million, not including the social costs related to restricted access to essential services. The report also discusses “the interwoven web of applicable legislations and procedures prescribed for their regulation. It also extensively covers the judicial precedents and policy developments in the regulation of internet shutdowns, in India and across the world.” The report further maps the impacts of the shutdowns on various stakeholder groups. Read more on IFEX and view SFLC.in’s Internet Shutdowns Tracker (IST).
Four new case analyses of judgments from India relating to internet shutdowns are featured below, including a petition brought by SFLC.in, currently before the Supreme Court, challenging the constitutionality of shutdowns.
● #KeepItOn: Who is shutting down the internet in Ukraine? AccessNow reports how internet shutdowns have become a part of Russian military strategy to prevent citizens from not only communicating with one another but also from getting information on humanitarian corridors, or fact-checking Russian propaganda or coordinating resistance. The shutdowns are “just one tool in Russia’s arsenal for digital occupation, wielded in pursuit of total informational control,” and AccessNow has identified four stages of the occupation: (1) Destroying civilian telecommunication infrastructure, (2) Rerouting internet traffic and seizing communication equipment, (3) Imposing heavy censorship and surveillance, and (4) Using shutdowns and blackouts as retaliation. AccessNow stresses that even during armed conflict, total communications blackouts can never be justified under international human rights law.
● Book Launch. The Collapse of Freedom of Expression: Reconstructing the Ancient Roots of Modern Liberty. This new book by Jordi Pujol “explores both the modern concept of the freedom of expression based on the European Enlightenment and the deficiencies inherent in this framework. Modernity has disregarded the traditional roots of the freedom of expression drawn from Christianity, Greek philosophy, and Roman law, which has left the door open to the various forms of abuse, censorship, and restrictions seen in contemporary public discourse.” The book further “examines emblematic cases such as Charlie Hebdo, free speech on campus, and online content moderation to elaborate on the tensions that arise within the modern concept of freedom of expression.” Global Freedom of Expression will be co-sponsoring an inter-disciplinary round-table discussion with Jordi Pujol on March 9th about his book and related themes, so save the date! More details to follow in the coming weeks.
Decisions this Week
The following newly published case analyses will be featured in a forthcoming Special Collection paper on Internet Shutdowns.
Software Freedom Law Center, India v. State of Arunachal Pradesh
Decision Date: September 9, 2022
The Supreme Court of India passed an order issuing a notice to the Ministry of Electronics and Information Technology in a petition challenging the constitutionality of the internet shutdowns. The Suspension Orders restricting the internet were issued to prevent students from cheating during examinations in the five states of Gujarat, Rajasthan, Arunachal Pradesh, Assam, and West Bengal. The Court asked the Ministry of Communications to put in a response, indicating whether there is any Standard Protocol for an internet shutdown during examinations that exists and if so, then to what extent and how the said Standard Protocol was adhered to and implemented. The Court directed the Ministry to file a response within three weeks from September 9, 2022, and was listed for hearing on October 14, 2022. The matter remains pending before the Supreme Court of India.
Ashlesh Biradar v. State of West Bengal
Decision Date: July 18, 2022
The High Court of Calcutta, India stayed the operation of an internet shutdown order issued by the Indian State of West Bengal. An internet freedom activist filed a writ petition challenging the internet shutdown order on the grounds that it violated Supreme Court of India guidelines on internet shutdowns and had been unlawfully issued. The Court held that the internet shutdown order had been passed without the authority of law, failed to satisfy the test of proportionality and did not contain reasons for suspending internet services.
Raju Prosad Sarma v. State of Assam
Decision Date: August 26, 2022
The High Court of Gauhati refused to stay the operation of an internet shutdown order issued by the State of Assam, India to prevent cheating during governmental recruitment examinations. After the Government of Assam suspended internet services for the first time a social worker filed a writ petition challenging the internet shutdown order on the grounds that it was unlawful. The Court refused to grant an interim measure as it may disrupt conducting of the exams. It did not discuss the constitutionality of the Suspension Order and found that the social worker had failed to make out a case on facts in support of his prayer for interim relief.
Dhirendra Singh Rajpurohit v. State of Rajasthan
Decision Date: November 28, 2018
The Rajasthan High Court observed that “public examinations” cannot be categorised as a public emergency under Article 19 of the Constitution of India for imposing an internet suspension order. Dhirendra Singh filed a petition challenging the constitutionality of the Suspension order on the grounds of violation of Article 14 (Equality), Article 19 (Freedom of Expression) and Article 21 (Right to life) of the Constitution. The High Court dismissed the petition after the Government of Rajasthan’s categorical stand on not suspending internet services during the competitive examination.
Pakistan Telecommunication Authority v. CM Pak Limited
Decision Date: April 22, 2022
The Supreme Court of Pakistan upheld the Ministry of Information and Technology’s Policy Directive concerning the suspension of mobile operator licenses as constitutional. The Supreme Court set aside the High Court of Islamabad’s decision which held the Pakistan Telecommunication Authority’s (PTA) direction to mobile cellular operators to suspend their operations and Policy Directive are inconsistent with the Telecommunications Act and declared them as illegal, ultra vires. The case arose after CM Pak Limited, a licensed service provider of mobile services filed a petition challenging the powers of the Pakistan Telecommunication Authority to suspend services based on mere apprehensions of a violation of the Constitution and a breach of its obligations to the customer. The High Court held that Pakistan Telecommunication Authority doesn’t have the power to suspend the services, because such power is only vested with Federal Government. The Supreme Court rejected the High Court’s reasoning and observed that the High Court failed to examine the policy taking into consideration the statutory powers conferred to the Pakistan Telecommunication Authority. The Supreme Court observed that there was a legitimate need to suspend cellular services, and the same was taken as protective measures at the request of law enforcement authorities to protect national security. The Court upheld the constitutionality of the Policy Directive and the powers of the PTA and disposed of the appeal.
Teaching Freedom of Expression Without Frontiers
This section of the newsletter features teaching materials focused on global freedom of expression which are newly uploaded on Freedom of Expression Without Frontiers.
Content governance in times of crisis: how platforms can protect human rights
This Declaration, jointly developed by Access Now, ARTICLE 19, Mnemonic, the Center for Democracy and Technology, JustPeace Labs, Digital Security Lab Ukraine, Centre for Democracy and Rule of Law (CEDEM), and the Myanmar Internet Project, sets out guidelines to help platforms protect human rights before, during, and after a crisis. The motivation for the Declaration stemmed from an understanding that “[i]n situations of armed conflicts and other crises, people use social media and messaging platforms to document human rights abuses or war crimes, access information, mobilize for action, and crowdsource humanitarian assistance. But governments and other actors leverage these same platforms to spread disinformation and hate speech, incite violence, and attack or surveil activists, journalists, and dissidents.” The partner organizations hope that the Declaration will help “advance consistent and rights-respecting principles for companies to respond appropriately to crises and meet their obligations and responsibilities under international human rights law.”
In case you missed it…
Radio Free Europe: Cold War-era broadcaster’s mission still relevant in 2023. “60 Minutes” interviewed Jamie Fly, President and CEO of RFE/RL and some of the outlet’s journalists about how the need to counter Russian disinformation has revitalized its mandate, to report objective truths in a post-truth world. Thanks to a boost in funding from the U.S. Congress, the outlet is adding two new bureaus and a new station featuring music, comedies, and documentaries. They are now reaching 40 million people in 23 countries from the former Soviet territories, with 11 million inside Russia. The digital platform has reported 3 billion views over the last year. Journalist Sergei Dobrynin says he is compelled to continue his work since “Russia is occupied by Putin, and also Russian people are occupied, many of them, by Russian propaganda.”
This newsletter is reproduced with the permission of Global Freedom of Expression. For an archive of previous newsletters, see here.