Access to Public Information, Content Regulation / Censorship, Digital Rights, Internet Shutdowns, National Security
SERAP v. Federal Republic of Nigeria
Closed Expands Expression
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The Community Court of Justice of the Economic Community of West African States (ECOWAS) held that the Togolese government violated the applicants’ right to freedom of expression by shutting down the internet during protests in September 2017. The Court found that access to the internet is a “derivative right” as it “enhances the exercise of freedom of expression.” As such, internet access is “a right that requires protection of the law” and any interference with it “must be provided for by the law specifying the grounds for such interference.” [p. 11] As there was no national law upon which the right to internet access could be derogated from, the Court concluded that the internet was not shut down in accordance with the law and the Togolese government had violated Article 9 of the African Charter on Human and Peoples’ Rights. The Court subsequently ordered the Respondent State of Togo to take measures to guarantee the “non-occurrence” of a future similar situation, implement laws to meet their obligations with the right to freedom of expression and compensate each applicant to the sum of 2,000,000 CFA (approx. 3,500 USD).
During August 2017, tens of thousands of protesters across Togo called for the return of the state’s 1992 constitution that guarantees multi-party elections and a two-term limit for the head of state. The terms of the constitution had been changed by the president’s father Eyadéma Gnassingbé, enabling his run for a third term in 2002. His son, Faure Gnassingbé, has been president of Togo since his father’s death in 2005.
On September 5, 2017, the Respondent State of Togo cut off access to the internet in an effort to disrupt planned protests. The shutdown took place from September 5 to 10 and again from September 19 to 21, 2017.
The first seven Applicants are non-governmental human rights organisations established and based in Togo, including Amnesty International Togo and the “Association Des Victim De Tortur Au Togo”. The eighth Applicant is a Togolese journalist operating in Togo as a blogger and activist. The Applicants claim that the internet shutdown was a violation of the right to freedom of expression, contrary to Article 25 of the Tongolese Constitution and Article 9 of the African Charter on Human and People’s Rights. They further submitted that the shutdown prevented them from carrying out their work, damaging their reputation and finances.
The Respondent’s defense challenged the locus standi of the first seven Applicants, as they were not natural persons or victims, while submitting that the eighth Applicant had “not stated the capacity in which she is bringing the action.” [p. 6] The government justified the shutdown as a necessary action in order to “safeguard the national security interest of the country.” [p. 2] The Respondent claimed that the spread of hate speech and incitement online risked Togo sliding into “civil war”.
The Community Court of Justice reviewed the decision.
Honourable Justice Gberi-Be Ouattara presided over the three-judge panel of the Community Court of Justice of the Economic Community of West African States (ECOWAS).
The main issue before the Court was whether the internet shutdown had violated the Applicants’ right to freedom of expression. To answer this question the Court proposed three issues for determination: (i) Whether the Court has the jurisdiction to hear and determine the application; (ii) Whether the Applicants have locus standi to institute the action; (iii) Whether the Applicants’ right to freedom of expression was violated. [p. 7]
Issue 1: The Jurisdiction of the Court
The Applicants claimed that the internet shutdown violated their rights to freedom of expression in a suit pursuant to Articles 9(1), 9(4), and 10(d) of the Supplementary Protocol of the Court 2005 (A/P1/7/91).
The Court determined that, as a human rights allegation, the Applicants’ application constitutes grounds for the Court to hold jurisdiction pursuant to Article 9(4), which provides that: “The Court has jurisdiction to determine case of violation of human rights that occur in any Member State.” [p. 7] Citing the case of Moussa Leo Keita v. Republic of Mali (2007) ECW/CCK/JUD/03/07, the Court noted that applications made concerning an alleged human rights violation will be heard if it complies with the criteria of article 10(d) of the Supplementary Protocol. The threshold for an application to be under the Court’s jurisdiction pursuant to Article 9(4) is “simply clothing a claim with an allegation of human rights”. [p. 8]
Issue 2: The Locus Standi of the Applicants
The Respondent State of Togo argued that the first seven Applicants did not have locus standi as they are not natural persons. They further submitted that the seven Applicants were not victims and therefore did not fulfil the criteria set out in Article 10(d) of the Supplementary Protocol of 2005. Concerning the eighth Applicant, the Togolese Journalist, the Respondent stated that she had not demonstrated “the capacity in which she is bringing the action.” [p. 6]
In response, the Applicants submitted that the seven non-governmental human rights organizations rely on the internet for their work and shutting down internet access affected their right to freedom of expression. The eighth Applicant claimed that the internet shutdown “denied her the right to work as a journalist and also her right to freedom of expression”. [p. 7]
The Court firstly set out the provisions of Article 10 (d) of the Supplementary Protocol 2005, which provide that:
“Individuals on application for relief for violations of their Human Rights; the submission of application for which shall:
I – not be anonymous, nor
II – be made whilst the same matter has been instituted before another international court for adjudication.” [p. 9]
Distilling the provisions under Article 10(d), the Court determined that an Applicant must possess the locus standi for their claim to be admissible. In this sense, the locus standi was defined as “an interest or a right to be protected”. [p. 9] Citing the case of Alhaji Mohammed Ibrahim Hassan V Governor of Gombe State V Federal Republic of Nigeria (2012) ECW/CCJ/RUL/07/12, the Court noted that: “Applicants not being a victim or relation of a victim of the violation of human rights has no locus to institute the action.” [p. 9] This decision places a burden to be discharged on an Applicant in order to exhibit locus standi, to “establish the status of either a victim or an indirect victim.” [p. 9] Considering the reliance of the first seven Applicants on internet access in order to conduct their work, the Court held that the non-governmental organisations had “established an interest and a right worthy to be protected.” [p. 9] The court consequently held that the first seven Applicants did possess locus standi to institute the action.
The Court subsequently considered the argument submitted by the Respondent that the first seven Applicants are not natural persons and therefore lack the required locus standi. To determine whether a non-natural person can institute the action or not, the court was guided by its recent decision in Dexter Oil V Republic of Liberia (2019) ECW/CCJ/JUD/03/19. In this case, the Court stated that: “The established exception under which corporate bodies can ground an action are: rights that are fundamental rights not dependent on human rights and they include right to fair hearing, to property and to freedom of expression.” [p. 10] From this holding, the Court found that non-natural persons may initiate claims to protect their right to freedom of expression, if violated, as well as other derivative rights. Therefore, the first seven Applicants have the locus standi to initiate their claim as victims of a violation to their freedom of expression.
In consideration of the eighth Applicant, the Court held that she had sufficient grounds to make a claim as a natural person alleging that the internet shutdown denied her the right to work as a journalist. Therefore, the judges determined that all eight Applicants had a locus standi to bring the action before the Court.
Issue 3: The Applicants’ Right to Freedom of Expression
The Court finally considered the third issue: whether or not the internet shutdown violated the Applicants’ right to freedom of expression. To answer this question, the Court began by considering whether internet access is “within the contemplation of violation to right to freedom of expression.” [p. 11] The Court reasoned that internet access may not strictly be a fundamental right, but is a “derivative right” as it “enhances the exercise of freedom of expression.” [p. 11] As such, the Court found that internet access is an “integral part” of the right to freedom of expression that “requires protection by law and makes its violation actionable.” [p. 11] Any interference with this right must, therefore, be “provided for by the law specifying the grounds for such interference.” [p. 11] Having established that access to the internet is an integral part of freedom of expression, the Court proceeded to determine whether the internet shutdown in September 2017 by the Togolese government violated the Applicants’ right to freedom of expression.
In answering this question, the Court was guided by Article 9(1) and (2) of the African Charter on Human and People’s Rights:
“1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law.” [p. 12]
For an action to succeed, the Applicants must demonstrate, firstly, that their right to free expression was interfered with and, secondly, that the interference was “not sanctioned or done in accordance with the law.” [p. 12]
The Applicants submitted that the Respondent shut down the internet, denying them the exercise of their right to freedom of expression, without a law in force to mandate such action. The Applicants further noted that any subsequent legislation would not subsequently justify the shutdown.
In response, the Respondent did not deny that they had shut down the internet, but justified their conduct on the basis of the “national security interest.” The Respondent claimed that the protests had the “potential to degenerate into a civil war” due to the hate speech and incitement to violence that was spread online. [p. 13]
The Court recognised that the Respondent’s national security argument has “merit” as a valid defense to justify derogating from the right to freedom of expression. However, the “fundamental basis of the exercise of this power of derogation is that it must be done in accordance with the law.” The absence of such a law is a violation of Article 9 of the African Charter on Human and People’s Rights. In this case, the Court opined that there was no national legislation providing the means by which the right to freedom of expression could be derogated from via an internet shutdown. Therefore, the Court held that the act by the Respondent to shutdown internet access was a violation of the Applicants’ right to freedom of expression.
The Court directed the Respondent State of Togo to take “all necessary measures” to prevent the re-occurrence of this “situation” in the future. The government of Togo was also directed to enact laws to meet their obligations regarding the right to freedom of expression in accordance with international human right standards. Finally, the Respondent was ordered to pay each of the eight Applicants 2,000,000 CFA (approx. 3,500 USD) in compensation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands the right to Freedom of Expression by recognising that the right to internet access is an element of expression. The Court held that internet shutdowns violate the free expression rights of both journalists and civil society organisations in conducting their work online. Considering the global rise of internet shutdowns, the decision creates a useful binding precedent over the Economic Community of West African States (ECOWAS).
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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