https://www.accessnow.org:443/judges-raise-the-gavel-to-keepiton-around-the-world/

Judges raise the gavel to #KeepItOn around the world

In July, Sudan ended a five-week long internet shutdown. A case brought by the Sudanese lawyer Abdelazeem Hassan is reported to have been the catalyst for the court order to the telco companies MTN and Sudatel to restore internet access in the country. Winning the lawsuit was a victory for freedom of expression and access to information in Sudan, and it bodes well for the movement to end shutdowns globally. We are happy to report that legal challenges like this one are becoming more common, and so are the victories.

As governments continue to shut down the internet, courts are becoming a viable way to fight back 

Access Now has been tracking legal actions to challenge shutdowns since 2015, documenting petitions, lawsuits, appeals, and other court actions against telco companies and governments. In our most recent documentation, we recorded 17 cases in 10 countries, from Russia to India to Cameroon. As we prepared this post for publication, we got news of more cases for our tracker, and the real number is likely to be even higher than the new figure. It has become clear that while the number of internet shutdowns appears to be increasing, so are the legal challenges.

From 2015 to 2017, we recorded only a handful of legal cases. But in 2018, we added five cases, and in the first half of 2019 alone, we added another five. Cases are now pending in the Economic Community of West African States (ECOWAS) Community Court, where Amnesty International and Media Legal Defence Initiative (MLDI) represent applicants suing Togo for its 2017 shutdown, and in India, where multiple petitions  have been launched regarding the shutdown in Kashmir. Not only are there more legal challenges, we are also seeing more victories like the one in Sudan. That’s heartening, given the many risks and challenges of pursuing legal action on shutdowns around the world. 

From Sudan to India to Zimbabwe and beyond, it is frequently lawyers – often independent practitioners without many resources or protections – who at the front lines of this battle. The cases are almost always brought with the support of civil society organizations seeking to defend constitutional and consumer rights. However, as we told Deutsche Welle, they should not have to fight alone. Telco companies have the opportunity and responsibility to demonstrate respect for the human rights of shutdown victims, and they can use their legal arms to resist government demands and bring more transparency to the orders, which often exceed the state’s legal authority.

The victories

India: In a number of cases, legal challenges to shutdowns have been very successful. Last July in Rajasthan, India, advocates Nitin Goklani and Pravin Vyas fought back against the numerous internet shutdowns affecting their state. Challenging the faulty legal rationale behind shutting down the internet for school exams, they persuaded the court to officially record the state Home Department’s acknowledgment that school exams are beyond any current legal justification for disrupting the internet. The legal framework that this report relied on was the “public safety and emergency” provisions in the Temporary Suspension of Telecom Services Rules, which is in itself problematic because it allows mass disruption to internet access. Nevertheless, the courts affirmed fundamental rights in this instance by motivating the government to partly restrict the reasons for its civil servants to issue internet shutdown orders. We hope this will prevent future disruptions of the internet for exams in Rajasthan. 

Kashmir: At least two cases are pending with regard to the ongoing internet shutdown in Kashmir; one petition was filed by a student unable to contact his family, and another by Anuradha Bhasin for media freedoms. In Anuradha Bhasin’s case journalist bodies including the Foundation for Media Professionals and the Indian Journalists Union have filed interventions to support the petition.

Kerala: We can argue other rights, beyond freedom of expression, to convince courts to end shutdowns. On September 19, 2019, the Kerala High Court made a “monumental decisionfinding the “Right to Internet Access” to be a fundamental right, according to Delhi based not-for-profit legal services organization SFLC.in (Software Freedom Law Centre, India). The Court declared that the right to have access to the internet becomes a part of the right to education as well as the right to privacy under the Constitution of India. The petition was filed by Faheema Shirin, a hostel resident and student of Sree Narayana College, Chelanur, Kozhikode against the discriminatory girls’ hostel rules, which banned the use of mobile phones at night. Shirin was expelled from the hostel for protesting against the rules, before filing the lawsuit. SFLC.in intervened in the matter for the petitioner.

Zimbabwe: A case in Zimbabwe demonstrates that, in shutdown litigation, technical legal questions such as standing, statutory construction, and procedure, can guide a court just as much as human rights arguments. This January, advocate Eric Matinenga, representing Zimbabwe Lawyers for Human Rights and MISA Zimbabwe, brought a lawsuit against the state. In its decision, the court ruled that the Minister of State in the President’s Office Responsible for National Security “does not have the authority to issue any directives in terms of the Interception of Communications Act,” making the order that led to the Zimbabwean internet shutdown illegal and without effect. According to Mantinenga, the ruling is narrow, as it is based on “preliminary points” and procedure, rather than substantive arguments. 

Sudan: Even in cases where the internet is disrupted during a turbulent period, relying on the rule of law and persistence in the courts can be effective in restoring access, given that extreme care must be taken to protect the safety of those involved in the litigation. In Sudan, Abdelazeem Hassan took telco company Zain to court just a few weeks after the internet was first disrupted. He won the case, but because he filed in a personal capacity, Zain restored access only to his own personal devices. Not satisfied with this result, he returned to court to challenge the other two companies behind the shutdown, MTN and Sudatel. This time, the court didn’t leave that loophole open. For the first time in five weeks, the internet was restored to all of Sudan. 

Pakistan: The case in Sudan highlights what appears to be an effective legal strategy filing multiple lawsuits. Hassan filed three lawsuits, one for each telecommunications company in Sudan, and the iterative process led to a victory even when one lawsuit did not achieve the desired result. This has happened before. In Pakistan in 2016, Umer Gilani filed lawsuits for four separate plaintiffs in response to an internet disruption ordered by the government, arguing that filing multiple suits “helps judges appreciate the gravity of the rights breach.” Umer’s victory at the Islamabad High Court yielded a strong, if technical, opinion finding that the Pakistani government violated the constitution and failed to follow the correct process for shutdowns. The case is now on appeal.

More recently, in a “landmark victory for internet in Pakistan,” the Islamabad High Court (IHC) ruled on two petitions filed by Media Matters for Democracy against website blocking, again showing the value in filing multiple suits. The court declared that the Pakistan Telecommunication Authority (PTA) must follow due process when shutting down websites, and that the government’s interpretation of the Pakistan Electronic Crimes Act Article 37 violated constitutional rights. Media Matters for Democracy Founder Asad Baig reports that their petition on internet shutdowns remains pending.

Across these victories, courts responded well to arguments that governments failed to follow proper procedures. Creative lawyering allowed judges to issue decisions responding to a particular incident, even as broad constitutional injunctions against shutdowns may not yet have been in reach.

Silver linings: even without successful judgments, court challenges bring more light to the darkness

Cameroon: Even when a court doesn’t directly rule in favor of the plaintiff, or even hear the case, taking legal action can have a positive impact for the human rights of those suffering under the shadow of internet shutdowns. Challengers can fail to get a hearing “on the merits,” where lawyers argue the substantive questions of the case before the court. Yet simply filing the lawsuit can get results, like increased transparency and responsiveness from telcos or the state. One Cameroonian lawyer, Emmanuel Nkea, has championed multiple cases at the Supreme Court and Constitutional Council to challenge the internet shutdowns in Anglophone regions of the country. 

On April 20, 2017, only hours after he and Media Legal Defence Initiative (MLDI) filed a lawsuit with Cameroon’s Constitutional Council, the government turned the Internet back on, ending a three-month shutdown. Then, after he filed a claim for judicial review, a local telco, Nexttel, submitted an affidavit explaining exactly who had given the orders to disrupt the internet: the government. This level of transparency was unprecedented. Governmental orders to disrupt the internet are often shrouded in secrecy. Better yet, Nexttel went further, explicitly calling the disruption a human rights violation.

Chad: As Southern African Litigation Center (SALC)  details in its report, Navigating Litigation during Internet Shutdowns in Southern Africa, there are many potential arguments (also called causes of action, or claims) that plaintiffs can raise in court. You could say a shutdown violated your constitutional right to free expression, for instance, or that it violated a law against interfering with telecommunications. Additionally, plaintiffs can make commercial arguments. A lawsuit in Chad, supported by Internet Sans Frontières, exposed internet throttling. In disclosures to the court, telcos blamed the government for the throttling, which slowed internet speeds in contravention of commercial service contracts and forced citizens to use expensive VPNs.

These examples show that even when authorities do not formally acknowledge the disruption of the internet, lawsuits can add pressure and bring facts to light that radically increase transparency regarding the origin, duration, and status of internet shutdowns, as well as their negative impact on the economy and human rights.

Of course, just filing a lawsuit can bring attention to internet shutdowns as a public issue. Cameroon’s Emmanuel Nkea told Access Now that more lawyers should be filing these types of lawsuits in order to “improve visibility and public debate on the issue.” Taking legal action also shows governments that when they covertly shut down the internet or infringe on human rights, they will be held to account, and, Nkea argues, “people will ask questions.”

To #KeepItOn, we need “more lawsuits, by more lawyers, in more countries”

In collaboration with the #KeepItOn coalition, we documented 196 shutdowns in 2018, yet only a small number of lawsuits have been filed to challenge them. Why?

First, these types of lawsuits are not always safe to bring. In some situations, challenging a government’s shutdown order opens new risks for the personal safety of the lawyers, and government intimidation tactics can scare off potential plaintiffs. Second, engaging the courts often costs money and requires special expertise and professional certification. Finally, in some cases the law is not well developed in this area, and lawsuits can take years to resolve. Sometimes, the plaintiffs never get a satisfactory response. 

Nkea’s experiences in Cameroon helps to illustrate these challenges. Upon filing lawsuits against the state and telcos during Cameroon’s three-month shutdown in 2017, he was summoned to multiple private meetings with government and telco attorneys, which were aimed at intimidating him and discrediting his ongoing projects. In these meetings, he told us, he and his team were accused of “attempting to destabilize Cameroon” due to their fight to restore access to the internet, a serious charge and threat to these individuals, and more broadly, a threat to the civic and democratic space needed to hold governments in check.

“If I wanted to destabilize Cameroon, I wouldn’t go through the courts; I went through the courts because I believe in the rule of law,” says Nkea. While he persisted in the face of attempts to stall his legal challenges, many of the potential plaintiffs he intended to file with decided to not take the risk, and he ultimately filed with only one party. 

Today, two of the cases he initially filed in 2017 were joined, and the combined file only recently come to an official close (read the petition, amicus brief, and final decision).  A separate case was ignored, despite a legal intervention by Access Now and Internet Sans Frontières, while another case, in which Access Now also intervened, had been dismissed within weeks of filing.

The lesson appears to be that these cases require courage, civil society support, time, and persistence, yet plaintiffs have good reason to be hopeful; ultimately, even in cases that are difficult, the rule of law is serving as an effective backstop for human rights in the face of internet shutdowns. What would help even more, according to Nkea? “More lawsuits, by more lawyers, in more countries.” 

We agree. We want to see more lawyers file lawsuits against shutdowns, and to make this possible, we would like to see additional funding to strengthen civil society efforts to #KeepItOn across the globe. This funding would support lawyers, legal clinics, and legal services organizations, as well as technologists, academics, and members of civil society that produce and share evidence for use in lawsuits. When it is safe to do so, the media should also publicize the work of these intrepid lawyers. 

More ways to help: share, connect, and tell your story

If you’re considering or working on litigation to end shutdowns, we ask that you alert us and the #KeepItOn coalition, and we invite you to use and share our resources widely. Lawyers who are engaged in these efforts can join our Digital Rights Litigators network by writing to Raman Jit Singh Chima at raman@accessnow.org and Peter Micek at peter@accessnow.org.

Finally, if you or your community has suffered an internet shutdown, we encourage you to share details of the impacts, as these help to educate judges and lawyers on the effects of internet shutdowns. You can share your story here.

Resources

The Southern African Litigation Center (SALC) report, Navigating Litigation during Internet Shutdowns in Southern Africa, has robust analysis and strategic recommendations for fighting shutdowns in court.

The Global Network Initiative (GNI) just launched its new and improved Country Legal Frameworks Resource (CLFR), which centralizes and facilitates search and comparison across a repository of more than 50 country-specific reports on the legal environments in markets where GNI company members have a presence. It is meant to help companies, researchers, advocates, and individual users better understand the legal powers available to governments seeking to restrict user communications or access user data.

The Columbia University Global Freedom of Expression project tracks lawsuits on freedom of expression and access to information issues globally, and contributes to more integrated and progressive jurisprudence on these topics.

Software Freedom Law Centre, India (SFLC.in) is a Delhi based not-for-profit legal services organization.

Media Legal Defence Initiative (MLDI) provides legal defence to journalists, bloggers, and independent media across the world, supporting legal training and advocacy through to litigation. 

In Pakistan, Media Matters for Democracy (MMFD) established Charahgar, a legal aid center, with the support of Media Legal Defence Initiative (MLDI). 

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