Open Access Research Article
INTERNET SHUTDOWNS: A THREAT TO FREEDOM AND DEMOCRACY BY: ASHISH EAPEN
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Article Details
INTERNET SHUTDOWNS: A THREAT TO FREEDOM AND DEMOCRACY
AUTHORED
BY: ASHISH EAPEN
Institution:
Christ (Deemed to be) University, Bengaluru
Abstract:
The paper explores the concerning phenomenon of internet shutdowns by
governments worldwide, creating an impact on freedom of expression and the
access to information. Based on theoretical frameworks on human rights arguments
for and against the legitimacy of internet shutdowns as tools for state control
are made. An examination into the economic consequences of these shutdowns and
highlighting and drawing parallels the with international regulations to
address this issue and discussing various approaches to combat internet
shutdowns, including legal mechanisms adopted by the courts and international
initiatives. Through a critical analysis of precedents and international
resolutions, the paper underscores the importance of protecting the internet and
its platforms for the free exchange of ideas and information. This paper
further compares the approaches to internet regulation between countries such
as India, and the European Union (EU). The paper further delves into the legal
and regulatory frameworks surrounding internet shutdowns, examining notable precedents
in India and the broader implications for human and fundamental rights. It
discusses the challenges posed by internet shutdowns in this age, particularly
in balancing claims of national security concerns with the constitutionally
guaranteed fundamental rights. Through a comparative analysis of international
responses to internet shutdowns, the paper offers insights into best practices
and policy recommendations for mitigating the negative impacts of these
shutdowns. It concludes by emphasizing the importance of upholding fundamental
rights in the digital era and the need for a concerted global effort to
safeguard internet freedom. The EU's framework, exemplified by the Digital
Services Act (DSA) and the General Data Protection Regulation (GDPR),
emphasizes protecting human rights while promoting innovation and competition.
In contrast, the use of internet shutdowns in countries like India raises
concerns about the balance between national security and individual rights. By
examining these contrasting approaches, the paper highlights the importance of
finding a balance that safeguards both national interests and fundamental
rights in the digital age.
Keywords:
internet shutdowns, human rights, freedom of expression, fundamental rights,
European Union
Several
regulatory provisions govern internet access in the EU and its member states.
The EU has aimed to tackle whether to achieve a decent standard of living in a
gigabit society and whether the internet deserves a place along with human
rights. The EU has introduced a new regulatory framework, the Digital Services
Act (DSA). The DSA aims to modernize the existing rules for online platforms
and services which were established in the e-commerce directive of 2000. These
changes brought about keeping in mind the challenges posed by the digital
economy, illegal products, spread of misinformation, etc.[1]
All
this brings about new obligations for online platforms, such as transparency
requirements, content moderation, and measures to combat illegal activities. It
is part of a broader trend towards increased digital economy regulation. The EU
has set global standards for data regulation, such as the General Data
Protection Regulation (GDPR).[2]
These
regulations brought forth has an impact on digital technologies on the economy
and our society, particularly the emergence of a platform economy and the
increasing use of Artificial Intelligence, which shows how the evolving
technologies pose to the rights enshrined in the EU Charter of Fundamental
Rights, such as the right to privacy and data protection. This highlights
the challenges and risks associated with the increasing use of digital
technologies in our everyday lives and the growing need for regulatory
responses and flexible interpretation of traditional instruments. Digital
platforms have significantly transformed how we engage in public activities by
enabling various interactions and services. These platforms, such as social
media, e-commerce sites, and online communication tools, have become essential
for journalism, civic engagement, education, and transportation. They
facilitate user communication and provide avenues for collaboration,
information sharing, and commercial transactions.
The
dominance of the "Big Five" tech companies - Apple, Amazon, Alphabet
(Google), Microsoft, and Meta- in the digital landscape raises several
concerns. These concerns include market competition, data privacy, consumer
choice, and potential abuse of market power. The concentration of power in the
hands of a few significant players can limit innovation, stifle competition,
and raise questions about data protection and privacy.[3]
To
protect fundamental rights in the context of digitalization and AI, it is essential
to address the challenges posed by these technologies. One approach is to
ensure that existing legal frameworks, such as the EU Charter of Fundamental
Rights and the European Convention on Human Rights, are effectively applied to
digital contexts. This includes safeguarding rights to privacy and data
protection, freedom of expression and information, and other fundamental rights
that may be at risk due to digitalization. Additionally, regulatory responses
that balance innovation with protecting fundamental rights are crucial.
Measures such as robust data protection regulations, transparency requirements
for AI systems, and ethical guidelines for using digital technologies can
mitigate risks and uphold fundamental rights in the digital age.[4]
Digital
platforms have revolutionized how individuals engage in public activities by
providing new avenues for communication, collaboration, and participation in
various spheres of life. These platforms have become integral to modern
society, enabling people to connect, share information, conduct business, and
access services in previously unimaginable ways. For example, social media
platforms allow users to interact with a global audience, share opinions, and
discuss diverse topics. E-commerce platforms have transformed how goods and
services are bought and sold, offering convenience and accessibility to
consumers worldwide. Online education platforms have expanded learning
opportunities, making knowledge more accessible and flexible. Additionally,
digital communication tools have facilitated remote work, virtual meetings, and
online events, enhancing connectivity and productivity.
The
dominance of a few significant players can stifle competition and innovation,
limiting consumer choice and potentially leading to monopolistic practices. The
looming question of data privacy with relation to big tech companies and them collecting
vast amounts of user data, raising concerns about data privacy, security, and
the potential misuse of personal information. The market dominance of the Big
Five may limit consumer rights, such as fair pricing, quality of service, and
transparency in business practices. These companies' sheer size and influence
give them significant control over digital ecosystems, raising concerns about
the abuse of market power and anti-competitive behaviour.
To
protect fundamental rights in the context of digitalization and AI, it is
crucial to implement comprehensive measures that address these challenges. This
includes ensuring that legal frameworks, such as the EU Charter of Fundamental
Rights and the European Convention on Human Rights, are effectively applied to
digital contexts to safeguard fundamental rights. Implementing robust data
protection regulations, such as the General Data Protection Regulation (GDPR),
to protect individuals' privacy and personal data in the digital realm.
Enforcing
transparency requirements for AI systems and digital platforms to ensure
accountability for their actions and decisions. Developing and adhering to
ethical guidelines for designing, developing, and deploying AI and digital
technologies to uphold fundamental rights and values. Adopting a multifaceted
approach that combines legal, regulatory, and ethical measures can mitigate the
risks associated with digitalization and AI while upholding fundamental rights
in the digital age.
Meanwhile,
in India, we see the use of internet shutdowns, which are intentional
disruptions of internet services which is one method of limiting citizens’
freedom of expression and information and other associated rights in the name
of national security, many viewing it as a means to consolidate power and
suppress opposition since the internet can be used to mobilize and voice
dissent.
India
is one of many countries that have implemented internet shutdowns. Still, we
also see countries like Myanmar and Ethiopia, and it isn’t merely a form of
control but includes the violation of international rights laws and the
negative economic consequences it carries for businesses and individuals. Seen
as a growing trend becoming more sophisticated and longer in duration.[5]
In the case of Anuradha Bhasin v. UoI[6]
surrounding the restrictions imposed in Jammu and Kashmir, particularly
concerning freedom of expression, movement and the legality of internet
shutdowns. The Court recognized the freedom of expression extends to online
platforms as well. While acknowledging the States concern regarding political
misuse of the internet for inciting violence, the court emphasized the
restrictions on the internet access should be necessary, proportionate and
subject to judicial review. The court found tat a complete and indefinite
internet shutdown was impermissible and that the State must justify and impose
a temporal limit on such restrictions.
The
court clarified that restrictions imposed under Section 144 of CrPC must be
based on genuine concerns related to public order and safety. The court
stressed that the authorities must provide material facts justifying the
imposition of such restrictions and that they should not be used as a tool to
supress legitimate expression.
The
court underscored the importance of transparency and accountability in
government actions, particularly during restrictions on fundamental rights. It
ruled that the State must disclose orders imposing restrictions and must
provide valid justifications for any claims of privilege. It underscores the
need for the State to adhere to constitutional principles and procedural
safeguards when imposing restrictions, particularly in the context of rapidly
evolving technological and geopolitical situations.
The
case of Foundation for Media Professionals v. Union Territory of Jammu and
Kashmir & Anr.[7]
brings to the forefront a contentious legal battle concerning the delicate
balance between national security imperatives and the protection of fundamental
rights in the digital age.
The
region of Jammu and Kashmir, long embroiled in territorial conflicts, changed
its status following the removal of Article 370 from the Indian constitution.
This modification led to actions being taken, including a communication
blackout involving suspending mobile internet services. The focus of this
situation revolves around the restrictions imposed on internet usage and the
reduction of internet speed to 2G.
The
petitioners, which include organizations like the Foundation for Media
Professionals, Soayib Qureshi, and the Private Schools Association of Jammu and
Kashmir, based their arguments on violations of fundamental rights. They
emphasized how crucial internet access is for healthcare, education, freedom of
speech, business operations, and legal access. The petitioners argued that the
government did not meet the criteria for implementing internet restrictions as
outlined in a previous court case known as Anuradha Bhasin v. Union of India.
Additionally, they contested the lack of a Review Committee—a requirement that
was laid out in the Temporary Suspension of Telecom Services (Public Emergency
or Public Safety) Rules in 2017.
On
behalf of the government, represented by the Attorney General, a defense
focused on security priority in policy decisions. The argument highlighted that
safeguarding against insurgency and preventing misinformation spread for
welfare should take precedence over rights. The government emphasized the risk
of terrorism and the possibility of the internet being misused for activities.
It stressed the importance of limiting internet access to reduce these dangers.
The
Supreme Court, in its opinion, demonstrated a nuanced understanding of the
complex issues at hand. While recognizing the importance of internet access for
various aspects of daily life, the Court also acknowledged the profound
implications of national security concerns. It weighed the competing interests
and recognized the evolving role of the internet in modern terrorism.
The
Court's decision to constitute a Special Committee, led by the Indian Home
Secretary, to assess the necessity of the internet restrictions underscores its
commitment to addressing individual rights and national security imperatives.
The Court found that the blanket enforcement of the shutdown lacked sufficient
justification and was not confined to specific high-risk areas.
The
Foundation for Media Professionals case reflects an ongoing legal discourse on
the scope of internet restrictions in the context of national security. It
highlights the challenges of striking a delicate balance between safeguarding
individual rights and countering emergent threats. The Court's emphasis on
proportionality and the need for adequate reasons to justify restrictions sets
an important precedent.
This
case resonates with broader debates on the regulation of technology and its
impact on fundamental rights. It raises questions about the limits of
government authority in imposing restrictions on digital communications,
particularly in an era where access to the internet has become indispensable
for various aspects of modern life.
In
conclusion, the Foundation for Media Professionals case is a crucial milestone
in India's legal framework concerning internet restrictions and national
security. It underscores the judiciary's role in mediating between competing
interests and provides valuable insights into the evolving relationship between
technology, individual rights, and state security.
The
significant increase of internet shutdowns in recent years in India,
particularly in certain states and the adverse effects these shutdowns have on
various aspects of everyday life, including education, communication, and
economic activities. But the flip side of the argument is the existence of
legal justification for these shutdowns and the contractual and/or legal
obligation.
The
normative order of the internet is a complex and multifaceted issue that
requires a deep understanding of the different levels and types of norms that
must be integrated into it. One of the most pressing issues in this regard is
the use of internet shutdowns by governments worldwide.[8]
At
the heart of the debate over internet shutdowns is whether they are legitimate
tools for governments to use in certain circumstances. It is argued that argues
that a (partial) shutdown might be legitimate when the internet is being used
as a tool, such as radio in the ICTR’s Radio Télévision des Mille Collines
case, and it is technically impossible to affect a more proportionate stop to
incitement to genocide. However, in Mukong vs. Cameroon[9],
the Human Rights Committee confirmed that references to national security and
unity can never suppress the promotion of human rights and democracy.
The
use of internet shutdowns as tools for states to manage information and
communication exchanges and to use infrastructure control to reach specific,
often illegitimate, policy objectives has become pervasive. Access Now reports
that partial shutdowns have increased dramatically, with sixty-one documented
shutdowns in 2017 in states ranging from India and Pakistan to Belarus and
Vietnam. In 2018, internet shutdowns in parts of Bali, Cameroon, Chad, India,
Togo, Venezuela, and other states were used as tools by governments to silence
activists, oppositional politicians, or grassroots movements.
The
theoretical backing against internet shutdowns is grounded in the principles of
human rights and democracy. The right to freedom of expression and access to
information is enshrined in international human rights law, and internet
shutdowns are seen as violating these rights. The United Nations Human Rights
Council has passed a resolution condemning internet shutdown and calling on
states to refrain from using them.
In
addition to the human rights concerns, there are also economic consequences to
internet shutdowns. A study by Deloitte and Facebook found that internet
connectivity disruptions can significantly impact the economy, with losses estimated
at $2.4 billion in 2016. The economic impact of Internet shutdowns is
particularly severe in developing countries, where the Internet is increasingly
seen as a critical driver of economic growth and development.
To
address the issue of internetshutdowns, several different approaches have been
taken. One approach is to use legal mechanisms to challenge the use of internet
shutdowns. In India, for example, the Supreme Court has issued several rulings
that restrict the use of internet shutdowns and require the government to
provide detailed justifications for any imposed shutdowns. Similarly, the
African Commission on Human and Peoples’ Rights has issued a resolution
condemning internet shutdown and calling on states to respect the right to
freedom of expression and access to information.
Another
approach is to use technical measures to circumvent internet shutdowns. This
can include virtual private networks (VPNs) or other tools that allow users to
access the internet even when the government blocks it. Finally, there is a
growing recognition of the need for international cooperation to address the
issue of internet shutdowns. The United Nations has called on states to work
together to develop a coordinated response to internet shutdowns, and several international
organizations have launched initiatives to promote internet freedom and combat
censorship.
India,
the largest democracy in the world, experienced the longest internet shutdown in the
year 2023, with a shutdown of over 5,000 hours in Manipur alone due to a
violent ethnic conflict. India has had at least 30 significant shutdowns
totaling 7,956 hours, affecting 59.1 million users and costing $585 million
globally. Shutdowns were often in response to civil unrest. Russia had the most
shutdowns, affecting 113 million users and costing $4.02 billion. Shutdowns in
India cost the economy $1.9 billion in the first half of 2023. Internet
shutdowns in Punjab, for example, left 25 million without access due to a
crackdown on a radical preacher. X (formerly Twitter) was the most blocked
social media platform, with 10,683 hours of disruption, often due to compliance
with Indian government takedown orders.[10]
In
conclusion, the use of internet shutdowns by governments worldwide is a complex
and multifaceted issue that requires a deep understanding of the different
levels and types of norms that must be integrated into the normative order of
the internet. The theoretical backing against internet shutdowns is grounded in
the principles of human rights and democracy, and several different approaches
can be taken to address this issue, including legal mechanisms, technical
measures, and international cooperation. Ultimately, the goal should be to
ensure that the internet remains an open and accessible platform for the free
exchange of ideas and information and that the rights of individuals to freedom
of expression and access to information are protected.
[1] Lina Jasmontaite & Paul De
Hert, Access to the Internet in the EU: A Policy Priority, a Fundamental, a
Human Right or a Concern for eGovernment?, Brussels Privacy Hub Working Paper,
vol. 6, no. 19, February 10, 2020.
[2] Aline Blankertz & Julian
Jaursch, How the EU plans to rewrite the rules for the internet, Brookings
[3] Brkan, M., Claes, M., &
Rauchegger, C. (2020). European fundamental rights and digitalization.
Maastricht Journal of European and Comparative Law, 27(6), 697-704.
https://doi.org/10.1177/1023263X20983778
[4] Estrada, Mariana. (2020).
Revisiting access to internet as a fundamental right in times of COVID-19. Unio
- EU Law Journal.
[5] Julia Ryng, Guillemette Guicherd,
Judy Al Saman, Priyanka Choudhury
&
Angharad Kellett (2022) Internet Shutdowns, The RUSI Journal.
[7]Foundation for Media Professionals v. Union Territory of Jammu and Kashmir & Anr., AIRONLINE 2020 SC 521
[8] Matthias C. Kettemann, The
Normative Order of the Internet, Theorizing
Order(s) on the Interne, Oxford University Press (2020)
[9] Mukong v. Cameroon.
CCPR/C/51/D/458/1991
[10] "India had longest internet
shutdown in 2023: Report," The Economic Times (Mar. 14, 2024),
https://economictimes.indiatimes.com/tech/technology/india-had-longest-internet-shutdown-in-2023-report/articleshow/108462868.cms?from=mdr.
Article Information
INTERNET SHUTDOWNS: A THREAT TO FREEDOM AND DEMOCRACY BY: ASHISH EAPEN
Authors: ASHISH EAPEN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/19
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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