Access to Public Information, Content Moderation, Content Regulation / Censorship, Digital Rights, Internet Shutdowns, National Security
SERAP v. Federal Republic of Nigeria
Closed Expands Expression
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The Eighth Chamber of the Constitutional Court of Colombia held that the government violated the rights to freedom of expression, association, and assembly by failing to provide the petitioners with timely, truthful, and complete information about the interruptions of internet service—and the use of signal jammers—during public protests which occurred in Cali, Colombia during April and May 2021. The petitioners, members of civil society, alleged that during the protests, internet service was interrupted and the cell phone signal was cut, violating their rights to freedom of expression, association, and assembly. In addition, the petitioners argued that the Police and the Army had signal-jamming equipment, and recalled the testimony of journalists, who stated that they lost signal as they approached a law enforcement vehicle, and got it back when they moved away from the car. For its part, the government held that the interruption of the aforementioned services was due to technical problems and acts of vandalism and terrorism by protesters. The Court held that there was insufficient evidence to confirm that the State was responsible for the internet shutdowns. Furthermore, the Court explained that the mere existence of State contracts to acquire technology to inhibit cell phone signals did not prove that authorities were responsible for the lack of internet connection during the protests. However, the Court considered that the government must investigate and communicate promptly, with a high level of transparency, the causes, timeframes, and places where the interruption of internet services occurred. Hence, by failing to do so before, the Court concluded that the government violated the rights to freedom of expression, assembly, and association because it did not provide the plaintiffs with accurate and complete information about the interruptions of internet services, and the use of signal inhibitors, in the context of the 2021 protests in Cali. Finally, the Court ordered the Ministry of Information and Communications Technologies, the National Spectrum Agency, and the Ministry of Defense to respond publicly on these pending matters.
On April 28, 2021, groups and members of civil society organized a national strike against the tax reform presented by former President Iván Duque. As a result, the Ministry of Defense announced the deployment of more than 1,000 agents to guarantee security and order in the city of Cali, Colombia. During the demonstrations, riots occurred and several videos shared through social networks showed the use of firearms against people and the arrest of protesters.
On May 1, 2021, former President Duque ordered military assistance to cities where riots were taking place, including Cali.
On May 4 and 5, 2021, Cali suffered internet connectivity problems, affecting approximately 7,000 people. There were warnings on social networks about the possible use of cellular signal-jamming equipment. However, the government explained that the interruption of services was due to technical problems and acts of vandalism and terrorism by protesters.
On May 13, 2021, petitioners Ana Bejarano Ricaurte, Emmanuel Vargas Penagos (co-directors of the NGO “El Veinte”), Carolina Botero Cabrera (Director of the NGO “Fundación Karisma”), Julio Gaitán Bohórquez (Director of the “Centro de Internet y Sociedad” of the “Universidad del Rosario”), and Jonathan Carl Bock (Director of the NGO “Fundación para la Libertad de Prensa”) filed a tutela action seeking protection of the rights to freedom of expression, association, and assembly, against the National Spectrum Agency, the Ministry of Information and Communication Technologies, the Ministry of Defense, the National Army and the National Police. They also requested information regarding the measures that were taken to guarantee internet access in the context of the demonstrations in Cali, what were the causes and effects of the interruption of internet services during the strike, and if there was any type of action on behalf of State agents that caused the interferences.
The petitioners argued that the disruptions affected their right to freedom of expression since they hindered access to information and opinions from people in the protest in Cali.
The petitioners also argued that their virtual participation as observers and human rights defenders was obstructed. The petitioners remarked that the government responses did not acknowledge their concerns about State censorship and the intervention of State agents in the shutdowns.
For its part, the National Spectrum Agency responded that it was not the regulator of the internet but of radio frequencies. In addition, the Ministry of Information and Communication Technologies responded that it had neither legal authority nor technical tools to restrict or block internet access. On the other hand, there were no specific statements from the Ministry of Defense, the Army, or the Police.
On July 29, 2021, the Third Criminal Court for Adolescents in Cali dismissed the petitioners’ action but acknowledged that there was an interruption of the internet connection that hindered the transmission and reception of information. The court held that this was due to the interruption of the electric power supply for security reasons, theft of equipment, and disturbances of public order, among other circumstances. The court concluded that “it did not find in the case file any evidence to demonstrate that the defendants were responsible for the limitations in Internet connectivity in the context of the protests or that they had engaged in conducts contrary to the human right to peaceful protest and other civil liberties.” [para. 29]
The plaintiffs appealed the court’s decision. In their appeal, they argued that authorities in possession of cell phone jammers and signal blockers (mainly the Ministry of Defense, the Army, and the Police) had not responded to information requests and that the Ministry of Information and Communication Technologies was in charge of guaranteeing free access to the internet, and therefore should explain thoroughly what happened.
On November 17, 2021, the Superior Tribunal of Cali upheld the first instance judgment. This court considered that the mere acquisition of signal inhibitors by the Military Forces does not entail their responsibility for the interruption of internet services in Cali. The tribunal said there was no evidence proving that the defendants were responsible for the connectivity interruptions.
The plaintiffs appealed again to the Colombian Constitutional Court and urged the government to provide technical, updated, and accessible information about the internet service interruptions that occurred during the protest. The Colombian Constitutional Court requested information from various government authorities regarding the facts of the case.
On August 16, 2022, the National Spectrum Agency responded that they had no information regarding internet services and that they only monitored radio frequencies. On August 17, 2022, the Army responded that the use of signal jamming was never contemplated or authorized during the May protests. On August 19, 2022, the Ministry of Information and Communications Technologies reiterated that internet service in Cali was affected due to damage to the telecommunications and electric power infrastructure caused during the protests. It also said that it had no jurisdiction to investigate the origin of the alleged interruptions or to determine who were the persons responsible for them.
On August 24, 2022, the Police responded that it had no information regarding the facts mentioned in the request.
Justice Natalia Ángel Cabo delivered the opinion for the Eighth Chamber of the Constitutional Court of Colombia. It had to decide whether the State violated the rights to freedom of expression, association, and assembly by allegedly interrupting or obstructing internet services, or by allegedly failing to provide complete information about the interruption of internet services and the use of signal jammers, in the context of the social protests that took place in Cali in 2021.
The petitioners argued that both the Army and the Police have cellular signal jamming equipment and that several people reported on social networks the use of signal jammers at critical moments and in critical areas where demonstrations occurred. In addition, the petitioners recalled the case of the journalists of “Canal 2,” who claimed that they suffered signal interruptions when they approached the vehicles of the National Police Mobile Anti-Riot Squadron (ESMAD), and that they regained signal when they were again at a distance from the ESMAD vehicles.
The petitioners alleged that the connectivity interruptions in Cali were attributable to the State and that this affected their right to freedom of expression because it harmed their chances of receiving and broadcasting information and opinions. In their view, the State merely said that “vandalism” and “terrorism” were responsible for the interruption of internet services, without providing further details, and without investigating possible censorship.
The petitioners also highlighted that on May 9, 2021, the UN Special Rapporteur on Freedom of Opinion and Expression tweeted that the Colombian government should provide information and refrain from interrupting internet access during protests. The petitioners also referred to the July 7, 2021 Report of the Inter-American Commission on Human Rights—the result of the Commission’s visit to Colombia in June. They explained that in its report, the Commission recalled that restrictions on internet access must be provided for by law, pursue a legitimate aim, be necessary and strictly proportional to the aim they pursue, and be subject to judicial control. The petitioners also mentioned the annual report (A/HRC/50/55) of the Office of the United Nations High Commissioner for Human Rights titled “Internet Access Interruptions: Trends, Causes, Legal Implications and Impacts on a Range of Human Rights”, which expresses concern about digital blackouts by governments in times of political tension and social protest. They also called on the government to provide information proactively and regularly on the functioning of Internet networks, so that complaints about possible interruptions and blockages can be cross-checked with technical, up-to-date, and accessible information.
Likewise, non-governmental organizations such as Access Now, Temblores, Derechos Digitales, and Media Defense, filed amicus curiae briefs highlighting international human rights law standards and several cases around the world in which internet service interruptions were used to unduly restrict freedom of expression during social protests.
For its part, the National Spectrum Agency responded that it had no information on internet services and that it only controlled radio frequencies. The Army responded that the use of signal jammers was never contemplated or authorized during the protests in Cali, and that their activity complied with international human rights law. The Ministry of Information Technologies and Communications stated that internet services in Cali were affected due to damage to the telecommunications and electric power infrastructure caused during the protests. It also said that it had no jurisdiction to investigate the origin of the alleged interruptions or to determine who were the persons responsible for them. In turn, the Police responded that it did not have information that would allow it to respond to the facts mentioned in the request.
First, the Constitutional Court declared the tutela action admissible and held that when the violation of the collective dimension of the right to freedom of expression is alleged, as occurred in this case, any person has standing to file this type of action.
The Court then mentioned Article 20 of the Colombian Constitution and Article 13 of the American Convention on Human Rights, which enshrine the right to freedom of expression in the Colombian legal system. The Court underscored the importance of freedom of expression in a democratic society and held that it includes the right to express thoughts and opinions, and also the right to inform and be informed truthfully and impartially. The Court added that freedom of expression is closely related to the rights of association and assembly, especially in contexts of public demonstrations.
Furthermore, the Court emphasized that freedom of expression is related to freedom of the press, which is crucial to the existence of diverse media and pluralism. In this sense, the Court considered that “only through a free, pluralistic and independent press can a vigorous democratic debate take place, and citizens can control any abuse by those in power.” [para. 73]
In this sense, the Constitutional Court held that the internet is “a valuable democratization tool for the communication of opinions and information since it also makes possible the existence and operation of alternative media.” [para. 77] The Court, referring to judgment T-155 of 2019, also explained that thanks to the internet “public debates are no longer in the exclusive hands of public figures or traditional media, as citizens have used this powerful tool to express themselves, denounce, organize and mobilize.” [para. 77] In addition, the Court held that “social protest is a form of expression in itself and, in this context, allegations of human rights violations are a form of specially protected speech.” [para. 80] Regarding the role of social media, the Court noted that they “are a space for denouncing and vindicating rights, and are part of the wide range of tools available to social movements to exercise their right to protest.” [para. 80]
The Court also held that “the Internet cannot be understood today as a mere public service, but as a true right.” [para. 81]
Furthermore, the Court mentioned that internet neutrality is a principle that permits few exceptions or restrictions, namely “(i) when it is necessary to maintain the security and functioning of the Internet; (ii) to avoid transfer of data not wanted by the user and provided that the user freely and expressly requests it; (iii) to deal with internet congestion problems,” as laid out in judgment SU-420 of 2019 and the Report of the IACHR Special Rapporteur on Freedom of Expression “Freedom of Expression on the Internet.” [para. 86]
Moreover, the Court explained that according to Article 4 of Law 1341 on Information and Communications Technology, the government must intervene in the field of communication technologies to protect the rights of users and ensure the quality, efficiency, and adequate provision of services. In turn, the Court recalled that the Ministry of Information and Communication Technologies issued Resolution 2774/2013, regulating the use of inhibitors, blockers, and amplifiers of radio signals, which are only allowed in cases related to public safety or when clandestine use of radio signals is noticed.
Subsequently, the Court referred to international human rights legal standards to establish basic principles on internet access: that the internet is a universal right in itself; that states have the obligation to promote and protect its use; that internet service should not be interrupted; that the total shutdown of the internet is a violation of international human rights standards that cannot be justified in any case even for reasons of public order or national security; and that the same rights that people have offline must also be protected online, in particular freedom of expression. These standards were outlined in several documents cited by the Court, such as the Joint Resolution on Freedom of Expression and the Internet adopted on June 1, 2011 (signed by the UN Special Rapporteur on Freedom of Opinion and Expression, the Representative on Freedom of the Media of the Organization for Security and Cooperation in Europe, the OAS Special Rapporteur on Freedom of Expression and the Special Rapporteur on Freedom of Expression and Access to Information of the African Commission on Human and Peoples’ Rights); the UN Human Rights Council, in Resolutions 20/8 of July 5, 2012—on the promotion, protection, and enjoyment of human rights on the internet— and A/HRC/38/L.10 of 2018 —on the promotion, protection, and enjoyment of human rights on the internet—; and the IACHR Special Rapporteur on Freedom of Expression, “Freedom of Expression on the Internet,” December 31, 2013.
In addition, the Court remarked that the IACHR —referring to the interruptions in the internet signal during the social protests of 2021— urged Colombia to provide information about possible interruptions of internet services and telephone signals in Cali.
In the present case, concerning the alleged actions of the respondents, the Constitutional Court agreed with the lower courts and held that there was insufficient evidence to maintain that the respondents were responsible for the internet disruptions caused during the social protests. In this regard, the Court held that “the information in the case file suggests that the failures in the Internet service during the days of protests were due to multiple causes and factors. Thus, it can be concluded that the alleged theft of the wiring and the suspension of the power supply possibly caused the service alterations and that there is not enough conclusive evidence to confirm or rule out the existence of direct actions on behalf of the defendants that triggered such alterations.” [para. 98] Furthermore, the Court added that the mere existence of State contracts to acquire technology to inhibit cell phone signals does not prove that the authorities were responsible for the lack of internet connection during the demonstrations.
However, the Court considered that the respondent authorities needed to investigate and communicate promptly, with a high level of transparency, the causes, timeframes, and places where the interruption of internet services occurred. Furthermore, referring to Article 20 of the Constitution, and Article 3 of Law 1712, on Transparency and the Right of Access to Information, the Court considered that the State must provide sufficient, impartial, and truthful information, specifically where public demonstrations occurred. In the Court’s opinion, this is also important to fulfill the principle of maximum disclosure and to ensure proper accountability. Considering this, the Court explained that the purpose of these rules is to allow citizens to scrutinize and monitor any misuse of technology that restricts their freedom of expression in the digital environment, and to examine hypothetical interruptions or intentional omissions in access to online information. Consequently, the Court held that the competent authorities must make timely announcements on these issues, based on technical, updated, and accessible information.
Thus, the Court concluded that “despite the evidentiary difficulty to determine with full certainty that the challenged authorities directly hindered the Internet service, in the present case, the Government—represented by the Ministry of Information Technologies and Communications, the Ministry of Defense, the Army, the Police and the National Spectrum Agency—, did violate the rights to freedom of expression, assembly and association because it did not provide the citizens and journalists with truthful and comprehensive information about the shutdowns to the internet service and the use of signal inhibitors, in the context of the social protests in Cali between April and May 2021.” [para. 101]
Then, the Court said that the State must guarantee access to public information and the provision of internet services without undue interference, especially in contexts of social protests. The Court also held that social protests are a matter of high public interest when “citizens need to be more informed.” [para. 105]
To clarify the issue, the Court explained that for the government to legitimately use signal jammers —which in the Court’s opinion did not occur in the present case— the following conditions must be met: the rights to freedom of expression and social protest must be guaranteed; the events in which these devices may be used must be clearly and precisely determined by law; and they must be used in cases of strict necessity and proportionality; and finally, judicial control over the use of such jammers in specific cases must be allowed.
The Court also noted that the aforementioned information was requested not only by the petitioners but also by the Inter-American Commission on Human Rights and the UN Special Rapporteur on Freedom of Opinion and Expression. Finally, the Court ordered the Ministry of Information and Communications Technologies, the National Spectrum Agency, and the Ministry of Defense to publicly respond to questions regarding the interruption of Internet services, and the alleged use of signal jammers during the protests of April and May 2021. Additionally, it requested Congress to regulate the acquisition of jamming equipment by public authorities and ordered the Ministry of Information and Communications Technologies, the National Spectrum Agency, and the Ministry of Defense to develop an appropriate legal framework for the use of these devices that respects the standards established in the judgment.
For all the above reasons, the Eighth Chamber of the Constitutional Court granted the appeal filed by the petitioners and concluded that in the case there was a violation of the rights to freedom of expression, association, and assembly.
Justice Reyes Cuartas presented a dissenting opinion. First, he argued that the action should have been declared inadmissible because the petitioners did not demonstrate that their human rights had been affected, nor that the interruption of the internet service was due to the action or omission of the respondents. Secondly, he held that there was no evidence that the Ministry of Information and Communications Technologies violated human rights or that the Army or the Police used jammers during the protests in Cali. In his opinion, the answers and the information provided, even if it was not what the petitioners expected, were sufficient to consider that there was no violation of the aforementioned rights.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Constitutional Court strengthened and updated the rules regarding internet interruptions, the importance of ensuring connectivity in social protests, and access to information in these contexts. In this sense, the Court argued that States must guarantee access to public information and the provision of internet services without interference, especially during public demonstrations, and that it must provide clear and timely technical information when shutdown complaints are filed. Even though the Court did not find evidence to attribute the interruptions to the government directly, it also held public authorities responsible for not providing adequate information about what happened to the internet and cell phone signals during the demonstrations in Cali in April and May 2021.
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