Case Summary and Outcome

The Community Court of Justice of the Economic Community of West African States (ECOWAS) determined that Guinea violated the right to information and freedom of expression as provided in Articles 9 (1) and (2) of the African Charter on Human and People’s Rights (ACHPR) by restricting access to the internet from October to December 2020. The applicants, who are Non-Governmental Organizations registered under the Guinean laws, had approached the regional court via their application filed on July 22, 2021, alleging that the respondent’s suspension of internet services and Facebook services between October 18, 2020, and December 2020, throughout Guinea, violated people’s right to information and right to freedom of expression. The Court—having noted in its analysis, that access to information is considered the foundation of democracy and that the right to freedom of expression guarantees the exercise of freedom of the press—held that the interruption of access to the internet and social media without justification constituted a violation of the applicant’s right to information and freedom of expression. In arriving at its decision, the ECOWAS Court argued that the respondent failed to prove that the restrictions fell within the limited framework of the exceptions provided in paragraph 3 of Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and 27 of the African Charter on Human and People’s Rights (ACHPR). The Court also held that the contested measures were not proportionate.

Facts

The applicants are Non-Governmental Organizations registered under the Guinean laws that work to protect and promote human rights—especially, freedom of expression and media freedom. The respondent is the State of Guinea, a member of the ECOWAS community and a signatory to the African Charter on Human and People’s Rights, and other international treaties. On 22 July 2021, the applicants filed an application at the registry of the ECOWAS Court alleging that the respondent violated their rights to information and freedom of expression when the State of Guinea restricted access to the internet and social media throughout the country. Indeed, on 18 October 2020 (during the presidential elections) there was limited connectivity to the internet and social media, between October 23-27, 2020, the internet was completely inaccessible in the country, and from October 27 until December 2020, Facebook was blocked.

The applicants argued that the restrictions hindered their ability to carry out their professional activities and negatively impacted the general public who relied on the internet and social media platforms like Facebook to receive vital news, including how to participate in the presidential elections.

The applicants prayed the Court to declare the restriction of the internet services and blocking of Facebook services across Guinea violations of the right to freedom of information and expression under the ACHPR, ICCPR, and the Revised ECOWAS Treaty, and urged the Court to order the respondent to take all necessary measures to put an end to said violations. Guinea did not file a defence in this matter and the Court proceeded based on the Applicants’ submission to decide the case.

Decision Overview

Justice Gberi-be Ouattara presided over the three-judge panel of the Community Court of Justice of the Economic Community of the West African States (ECOWAS). In delivering the judgment, the Court considered that the central issue, regarding freedom of expression, was whether Guinea’s restriction on internet and social media access violated the applicants’ right to freedom of expression and access to information.

The Court began its analysis by noting that access to information should be “guaranteed to as wide a public as possible by all means including the media (event, fact, judgment, figures, documents) and internet which disseminates information more quickly and on a global level.” [p. 14] Furthermore, it said that this right enables citizens to fully participate in the democratic process and in decisions that concern their future.

Moreover, the Court underscored that access to information is an extension of freedom of expression. As the Court mentioned, both Article 9 of the ACHPR and 19 of the Universal Declaration of Human Rights (UDHR), refer to access to information in conjunction with freedom of expression. Further, the Court argued that this dyad was also included in Article 16 of the Federal Constitution of Switzerland.

Regarding freedom of expression, the Court underscored the protection of this right in several international and regional instruments and highlighted its vital role in democratic societies. The Court cited the UN Human Rights Committee to argue that freedom of expression protects “the expression and receipt of communication of any form of ideas and opinions likely to convey the discussion of human rights to others.” [p. 17]

Subsequently, the Court held that freedom of expression is not an absolute right, for it can be restricted, exceptionally, through measures provided by law, that serve a legitimate interest and are necessary and proportionate. Upon analyzing the case at hand, the Court held that restricting the internet and Facebook was not a measure provided by law and that Guinea failed to argue in favor of its legitimate purpose. The Court opined that even if the restriction served a legitimate purpose, it was nevertheless disproportionate since restrictions should be aimed at specific content, and general operating bans on certain sites and systems are not compatible with Article 19 (3) of the ICCPR. Expounding further on this, the Court cited its jurisprudence on the case of Amnesty  International, Togo v. Republic of Togo where the Court held that “the blocking of internet access by the Respondent State violated the Applicants’ right to freedom of expression.” [p. 21] Thus, the Court considered that Guinea violated the freedom of expression of the applicants.

The Court said that the aforementioned restrictions also breached the right of access to information given that they interfered with the applicants’ right to right to freely seek, receive, and disseminate information and ideas.

Ultimately, the Court declared that Guinea breached the applicant’s right to freedom of expression and access to information, as enshrined in the ACHPR and the ICCPR, and ordered the respondent State to take all necessary measures to ensure that such violations do not occur in the future. The Court also ordered Guinea to adopt and implement laws, regulations, and safeguards to fulfill its obligations towards freedom of expression under international human rights standards.