ECOWAS Togo court decision: Internet access is a right that requires protection of the law

On June 25, 2020, the Economic Community of West African States (ECOWAS) Community Court issued a pivotal decision for the right of freedom of expression in Togo and other West African States. Access to the internet has to be protected under the law, the court ruled, and by shutting it down during the anti-government protests in 2017, the Togolese government violated human rights. Moreover, the court found Togo’s national security arguments unpersuasive, and insufficient to justify the internet shutdown under local nor under international law.

What happened?

The internet shutdowns that are the subject of the lawsuit were implemented against the background of the anti-government demonstrations that broke out in August of 2017, as the opposition party, Le Parti National Panafricain (PNP), called for the return of the 1992 constitution which guarantees multi-party elections and a two-term limit for the president. The government responded by shutting down the internet, affecting two major internet operators, Togocel and Moov, between September 6 and 8, and using excessive force to suppress multiple protests. This led to 11 protesters — including children — being killed, dozens injured, and 60 imprisoned. According to the ECOWAS court documents, the Togolese government also proceeded with instructions to draft a legislation allowing it to shutdown the internet at will, and without any judicial oversight. 

In response, a group of seven non-profit organizations  — Amnesty International Togo, L’Institut Des Médias pour La Démocratie et les Droit de L’Homme, La Lantere, Action des Crechrertienc pour L’Abolition de la Torture, Association des Victim de Tortue au Togo, Ligue des Consommateurs de Togo, L’Association Togolaise pour L’Éducation aux Droits de L’Homme et la Démocratie — and journalist Houefa Akpeda Kouassi filed a case against the Togolese Republic in the ECOWAS Community Court, claiming that the shutdowns violated their human rights. In particular, the Applicants claimed violations of  the right to seek and receive information, and to disseminate opinions under Article 9 (1) and (2) of the African Charter on Human and People’s Rights, the right to freedom of expression under Article 19(2) of the ICCPR and the rights to journalists under Article 66(2) of the Revised ECOWAS Treaty. 

Access Now led a coalition of eight organizations — the Association for Progressive Communications (APC), ARTICLE 19, Collaboration on International ICT Policy in East and Southern Africa (CIPESA), the Committee to Protect Journalists (CPJ), Internet Freedom Foundation (IFF), the NetBlocks Group, and The Paradigm Initiative (PI) — in submission of a “friends of the court,” or amici curiae brief, advising the court on the international legal standards and norms applicable to internet shutdowns. 

The Ruling

The court’s ruling outlined several important points. First, the court established that access to the internet is included within the right to freedom of expression. The court stated that internet access “is a vehicle that provides a platform that will enhance the enjoyment of the right of freedom of expression.” The court also added that the right to internet access is a right that “states are under obligation to provide protection for in accordance with the law” and “any interference with it has to be provided for by the law specifying the grounds for such interference.”

Second, the court ruled that shutting down access to the internet by the Respondent violated the Applicants’ right to freedom of expression under Article 9 (1) and (2)  of the African Charter on Human and People’s Rights. In the case, the Applicants successfully established that since the internet is essential for the exercise of freedom of expression, shutting it down constitutes an interference with this right. The Applicants successfully demonstrated that at the time of the interference, there was neither a law in force that allowed the Togolese government to shut down the internet, nor could the government rely on any future legislation to retroactively justify the shutdown. In addition, despite the government’s claims that the country was on the brink of civil war due to the anti-government protests, there was no emergency existing in the state that would justify shutting down the internet. 

As a result, the court ruled in favor of the Applicants and ordered the Togolese government “to take all the necessary measures to guarantee non-occurrence of this situation in the future,” as well as to enact and implement laws, regulations, and safeguards in order to meet its obligations to respect the right of freedom of expression in accordance with the international human rights instruments. The court also ordered the government of Togo to pay 2,000,000.00 CFA compensation to the Applicants for the violation of their rights.

What this means for the fight against internet shutdowns

The ECOWAS Togo decision is generally consistent with existing international law, such as Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and the The UN Human Rights Committee (UNHRC)’s General Comment No. 34 on Article 19 ICCPR, which state that no internet restrictions are permissible unless they are provided by law. However, the court did not address the necessity and proportionality requirements outlined in the General Comment No. 34, including that any restrictions on the freedom of expression, such as internet shutdowns, “must be the least intrusive instrument amongst those which might achieve their protective function.” This is the key question that should be asked whenever a government is contemplating shutting down an entire internet network or service: would a less harmful step be effective? 

Nevertheless, the court did order the government of Togo to enact the law protecting freedom of expression that would be consistent with international human rights instruments in the future. This means that the Togolese government should enact legislation protecting its citizens’ rights from any disproportionate restrictions on their expression. 

The court’s decision stayed within the parameters of the right to freedom of expression in its discussion of internet shutdowns. In the Access Now-led amicus brief, we invited the court to consider the other fundamental rights affected by shutdowns, such as the right to work, health, education, scientific progress, and cultural life, covered by the International Covenant on Economic, Social and Cultural Rights (ICESCR). We noted that these rights fall within the jurisdiction of the ECOWAS court under Article 1(h) of the ECOWAS Protocol on Democracy and Good Governance and therefore binds Togo and other ECOWAS member states. However, the court did acknowledge the Applicants’ submission that the shutdowns not only affected their right to freedom of expression, but also their right to work, which affected their financial circumstances and cost the economy of Togo up to 1,800,000 USD. We encourage courts to explicitly refer to the effects of internet shutdowns on other fundamental rights, beyond the right to freedom of expression, in the future. 

“The ECOWAS Court ruling in the favor of the Togolese people is not only a victory for those affected by the 2017 internet shutdowns, it sets a precedent to all other governments that they will be held accountable for their actions,” said Natalia Krapiva, Tech Legal Counsel at Access Now.

Crucially, the ECOWAS decision represents a significant precedent that confirms the internet to be an enabler of human rights that deserves protection under the law. Padraig Hughes, Legal Director of Media Defence, co-counsel for the Applicants, welcomed the decision as being “important for freedom of expression online that should act as a warning to other governments considering using internet shutdowns as a tool to silence dissent.” Hughes continues, “Not only did the court rule that the shutdown was illegal, and should not be repeated, it affirmed that access to the internet is itself an essential component of the right to freedom of expression, which states are obliged to protect,” Hughes said. In addition, according to the Media Defense, the decision is significant because the ECOWAS Court refused to accept the government of Togo’s assertion that it acted on national security grounds, which is a common justification that states use to restrict online access. Thus, the judgment makes clear that courts will carefully scrutinize such assertions, and will insist that governments protect access to the internet in keeping with international human rights law standards.

Overall, together with the recent Jakarta Administrative Court decision, which similarly ruled that shutdowns implemented by the government of Indonesia during protests were unlawful, the ECOWAS decision shows a positive trend in favor of applicants challenging internet shutdowns. We hope that the courts in Ethiopia, Kashmir, Myanmar, and other places around the world where shutdowns are used as tools to suppress the rights to freedom of expression, freedom of assembly, and other fundamental rights take notice. We also encourage others to file cases with domestic, regional, and international courts to continue the fight against internet shutdowns and to #KeepItOn.