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Justiciability of the Right to Internet

Introduction

“Humans”. “Rights”. These two have, over the years, become inseparable and in fact, some scholars have equated rights as that bundle of freedoms that set humans apart from other species. Depending on the jurisdiction, there are different rights guaranteed – but a common right guaranteed in almost all jurisdictions is the right to freedom of expression. In recent times, this right has been extended to right to the internet.[1] As Best puts it, “a symmetric information right to some extent requires the Internet, and thus access to the Internet itself has become a human right”.[2]

Right to the internet has been described as “… the view that all people must be able to access the Internet in order to exercise and enjoy their rights to freedom of expression and opinion and other fundamental human rights, that states have a responsibility to ensure that Internet access is broadly available, and that states may not unreasonably restrict an individual’s access to the Internet.”[3]

The however troubling question is: is the right to the internet (if ever there is any) justiciable? By justiciable, it is meant that the right is “capable of being disposed of judicially”[4], in order words, the right can be enforced in the court.[5] It therefore follows that for right to internet to be justiciable, it must have been first recognized as a “right” in the first place. The discussion here would take on a national, regional and international outlook.

National

In Nigeria, the right to freedom of expression is guaranteed in Section 39 of the Constitution which provides that “[e]very person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.” Admittedly, a literal interpretation of this provision would simply mean that the right to internet is guaranteed under the Nigerian Constitution. This is against the backdrop of the reasoning that “engagements” held or “communications” exchanged on the internet are but a form of expression and should readily come within the framework of right to freedom of expression.

However, a more critical view would be that since the internet is not specifically mentioned, then the legistators did not contemplate right to internet.[6]  To the adherents of the later school of thought, the most that can be said of the right to internet as far as Nigeria is concerned is that it is one of the aspirations the government is committed to guarantee, but not bound to guarantee.[7]

The concept of justiciability of rights is recognised under the Nigerian right regime which largely, bifurcated the regime of enforceability into two: justiciable rights (those under Chapter IV of the Constitution) and non-justiciable rights (those under Chapter II).[8] This divide finds support in Section 6(6) (c) which generally ousts the jurisdiction of the Court in enforcement proceedings as it relates to provisions under Chapter II.

It is difficult to guess whether Courts in Nigeria might interpret Section 39 to cover right to internet in absence of any specific provision in this regard.

It is imperative to however note that some countries have guaranteed the right to internet, either through legislative or judicial interventions. Thus by Article 5A(2) of the Constitution of Greece (as amended in 2019), “all persons have a right to participate in the Information Society.  Facilitation of access to electronically transmitted information, as well as of the production, exchange and diffusion thereof, constitutes an obligation of the State, always in observance of the guarantees of articles 9, 9A and 19.”[9]

As far back in 2000, in Estonia, the parliament launched a massive program to expand access to the countryside. The Internet, the government argues, is essential for life in the 21st century.[10] In addition, in September 2019, Kerala High Court held that the right to have access to the internet is part of the fundamental Right to Education as well as the Right to Privacy under Article 21 of the Constitution.[11]

Regional

Countries at regional level often collaborate on laws, economic issues, policies etc. Nigeria is no exception, and it is a foremost member of the African Regional bloc. On top of the collaborative effort is the African Union, whose major instrument is the African Charter on Human and Peoples’ Rights. Article 9 of the Charter sets out that: “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.” Also, Article 10, European Convention on Human Right provides: “Everyone has the right to freedom of expression.”

Again, a literal approach would readily situate the right to the internet within the context of Article 9 especially as “right to receive information” could be translated to mean right to receive information through the internet. Similarly, “right to express and disseminate… [one’s] opinions within the law” could be said to extend to virtual fronts such as the internet. Similar to the dichotomy at the national level, the justiciability (which by now has assumed the meaning of “enforceability”) at the regional level is dependent on whether the instrument in question is a treaty or convention or a mere declaration. Furthermore, justiciability is further influenced by whether the treaty, convention or declaration has been subsequently domesticated/ and or ratified by the state party wherein same is being sought to be invoked.

Be that as it may, suffice to say that while there is yet to be a specific regional instrument recognising right to the internet (besides the extended meaning of Article 9 or other similar provision which speak on right to freedom of expression generally), there are movements, including activities of non-state actors such as those of civil societies. Notable here is the activities of the Paradigm Initiative[12] which has been championing the cause of digital rights in Africa.

International

On the international scene, Articles 19 of the Universal Declaration of Human Rights and the International Covenants on Civil and Political Rights, respectively, protect the right to freedom of expression.  The same obscure nature of justiciability of right to internet at the regional level, holds true for justiciability at the international stage, in that there has been no formal recognition of the right to the internet, although same has been acknowledged.

For instance, the UN Millennium Declaration includes ensuring that the benefits of information and communication technologies (ICT) are available to all. Similarly, the UN Special Rapporteur Frank La Rue described the right to freedom of opinion and expression as an essential “enabler” of other rights through the Internet: “by acting as a catalyst for individuals to exercise their right to freedom of opinion and expression, the Internet also facilitates the realisation of a range of other human rights”.[13] Many states have also acknowledged the enabler status of the right to the internet as it relates to other rights.

Instances of Violation – National, Regional and International.

Freedom of expression, manifested in access to the internet, has been under threat in recent times. For instance, only recently Myanmar, India, Uganda had each shut down the internet.[14] Another variant of violation of right to internet is extensive surveillance. For instance, in 2012, the Chinese Government intensified its Internet monitoring by means of a new programme that allows them to discover and prevent connections through virtual private networks (VPN) which had been used by activists to bypass national content blocks.[15]

In the early days of the #EndSars Protest in Nigeria, there were wild insinuations that the Government might shut down the internet [16] and a possible resort to VPN. Even earlier before the Protest, bills which, according to many commentators, would amount to clamping down on right to internet[17] have been introduced. Yet the Digital Rights and Freedom Bill drafted by civil societies, capable of extending the frontiers of digital rights protection, has still not seen the light of the day.  Similarly, the Cybercrime Act signed into law in 2015 is also being used by the political class to clamp down on bloggers.[18]These instances show that the right to the internet is a far cry from being recognised or justiciable.

 

Road to Justiciability/ Recommendations

This article has been able to establish that right to the internet – arguably an extension of right to freedom of expression – is at the national, regional or international levels miles away from being justiciable in the true sense. Against the backdrop of the importance of internet today, it is important that the right to internet is consciously recognised and made enforceable. To achieving this, activities of the non-state actors need to be further supported.

Albeit these challenges, some successes have been recorded: for instance, in December 2012, the European Court of Human Rights ruled in Yildirim[19] that Turkey was not allowed to issue a blanket ban on specific Internet services. This however must be consolidated and backed up with steps such as formal recognition of the right to internet under Nigerian laws. The judiciary must also be up and doing in enforcing same.

[1] Stephen Tully, A Human Right to Access the Internet? Problems and Prospects, Human Rights Law Review, Volume 14, Issue 2, June 2014, Pages 175–195, available at https://doi.org/10.1093/hrlr/ngu011, accessed May 12, 2021.

[2] Michael L. Best, ‘Can the Internet be a Human Right?’, Human Rights & Human Welfare, available at https://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.501.4365&rep=rep1&type=pdf accessed May 12, 2021.

[3]Available at https://en.wikipedia.org/wiki/Right_to_Internet_access, accessed May 12, 2021.

[4] See the definition of the word “justiciable” in Bryan Garner (ed) Black’s Law Dictionary, 9th Edition (Thomson Reuters)

[5] The Court of Appeal in Ajagungbade III v. Adeyelu II (2001) 16 NWLR (Pt. 738) 126 (P.185, para. B) held that “justiciable” “… means a matter appropriate for court review”.

[6] This is the rule of interpretation known as Expressio Unius Est Exclusio Alterius, meaning the expression of one thing is the exclusion of the other.

[7] See Brain Skepys, ‘Is There a Human Right to the Internet?’, Journal of Politics and Law, Vol 5, No 4, 2012 available at https://heinonline.org/HOL/LandingPage?handle=hein.journals/jpola5&div=64&id=&page=  accessed May 12, 2021.

[8] University Edih and Basil Ganagana, ‘Justiciable or Non-Justiciable Rights: A Debate on Socio-Economic and Political Rights in Nigeria’, Vol.8, No.4, pp.78-85, July 2020, Global Journal of Politics and Law Research, available at https://www.eajournals.org/wp-content/uploads/Justiciable-or-Non-Justiciable-Rights.pdf accessed May 12, 2021.

[9] Available at https://www.hellenicparliament.gr/UserFiles/f3c70a23-7696-49db-9148-f24dce6a27c8/001-156%20aggliko.pdf accessed May 25, 2021.

[10]Collin Woodard, ‘Estonia, where being wired is a Human Right’, The Christian Science Monitor, https://www.csmonitor.com/2003/0701/p07s01-woeu.html accessed May 25, 2021.

[11] Kochi, ‘Access to Internet is a basic right, says Kerala High Court.’ The Hindu available https://www.thehindu.com/sci-tech/technology/internet/access-to-internet-is-a-basic-right-says-kerala-high-court/article29462339.ece accessed May 25, 2021.

[12] https://paradigmhq.org/

[13] See Wolfgang Benedek and Matthias C. Kettemann, Freedom of Expression and the Internet, https://rm.coe.int/prems-167417-gbr-1201-freedom-of-expression-on-internet-web-16×24/1680984eae (Council of Europe Publishing, 2013)  accessed May 12, 2021.

[14] Darrel M. West, ‘Shutting down the Internet’, TechTank, available at https://www.brookings.edu/blog/techtank/2021/02/05/shutting-down-the-internet/ accessed May 12, 2021.; See also Darrel M, West, ‘Global economy loses billions from internet shutdowns’, TechTank, available at https://www.brookings.edu/blog/techtank/2016/10/06/global-economy-loses-billions-from-internet-shutdowns/ accessed May 12, 2021.

[15] Osborne C. (17 December 2012), China reinforces its ‘Great Firewall’ to prevent encryp‑tion, at news.cnet.com/8301-1009_3-57559531-83/china-reinforces-its-great-firewall-toprevent-encryption cited in Wolfgang Benedek and Matthias C. Kettemann, Freedom of Expression and the Internet, Council of Europe (Council of Europe Publishing, 2013)

[16] Oluwanifemi Kolawole, ‘EndSARS: How to bypass internet shutdown in Nigeria” TechPoint Africa, available at https://techpoint.africa/2020/10/15/endsars-bypass-internet-shutdown-nigeria/ accessed May 12, 2021.

[17]  Notably, the Hate Speech Prohibition Bill 2019, the National Commission for the Prohibition of Hate Speeches (Est. etc) and the Protection from Internet Falsehoods and Manipulations and Other Related Matters Bill 2019. See Emmanuel Paul, ‘Everything you need to know about Nigeria’s Social Media Bill and what you can do about it’, TechPoint Africa, available at https://techpoint.africa/2019/11/28/nigerias-social-media-bill/ accessed May 12, 2021.

[18] Institute for Research on Internet and Society, ‘Situation of Internet Freedom in Nigeria, available at ‘’https://irisbh.com.br/en/situation-of-internet-freedom-in-nigeria/ accessed May 11, 2021.

[19] European Court of Human Rights, Yildirim v. Turkey (18 December 2012), application No. 3111/10, at www.bailii.org/eu/cases/ECHR/2012/2074.html

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