The Executive Director of Media Rights Agenda, Mr. Edetaen Ojo, has called on Internet governance stakeholders in Africa to develop and establish regional guiding principles to assist African Governments seeking to adopt national legislation to regulate Internet and digital communication.
Speaking at the 2013 Africa Internet Governance Forum (AFIGF) held in Nairobi, Kenya, last month, Mr. Ojo said: “As more and more governments in Africa move to adopt legislation to regulate the Internet, Internet activities and communication as well as other forms of digital communication, it is important that guiding principles are laid down to assist such governments develop instruments that are in conformity with international norms and standards.”
Stressing that the “task appears to me to be quite urgent”, he urged that the exercise of developing such guiding principles “should commence immediately.”
The 2013 AfIGF, held at the Multimedia University of Kenya, was attended by a total of 195 participants from 29 countries made up of Internet Governance stakeholders from governments, the private sector, civil society, regional and international organizations.
Speaking on the subject of “Human Rights, Freedom of Expression and Free Flow of Information on the Internet,” Mr. Ojo noted that the recent United Nations Human Rights Council Resolution A/HRC/20/L.13, on the Promotion, Protection and Enjoyment of Human Rights on the Internet, adopted on July 5, 2012 provides significant guidance on how to approach the issue of protecting human rights online.
He recalled that in the Resolution, the Human Rights Council affirmed that “the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”
Observing that two African countries – Nigeria and Tunisia – were part of a coalition of six countries, including Sweden, the United States, Brazil and Turkey, that submitted the Resolution on June 28, 2012 and lobbied others to support it, Mr. Ojo argued that the Resolution should therefore “have a special meaning for us in Africa” which should motivate Africans to give effect to it.
According to him, “the clear implications of the Resolution is that we do not need separate legal regimes to protect human rights, freedom of expression and the free flow of information online.”
He stressed that “It would mean that existing legal instruments need to be applied to protect these rights to the same extent that they are protected offline.”
Mr. Ojo identified two major instruments in the international regime of human rights protection, including for the right to freedom of expression, that are relevant for this purpose to be the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).
Quoting Article 19(2) of the ICCPR, he noted that the instrument provides that: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
Mr. Ojo argued that in a recent “General Comment” on Article 19 of the ICCPR, the UN Human Rights Committee has further provided very detailed and extensive clarification on the circumstances under which the right to freedom of expression may be legitimately restricted and the permissible scope of such restrictions.
He explained that “General Comment No. 34” was issued by the Human Rights Committee on July 21, 2011 to provide guidance on how to interpret the right to “freedoms of opinion and expression” guaranteed by Article 19 of the ICCPR.
He also explained that the UN Human Rights Committee, established under the ICCPR, is composed of 18 independent experts representing all regions of the world and is charged with monitoring compliance by member states of the UN with their obligations under the ICCPR while also providing clarification on the interpretation of the provisions of the ICCPR.
According to Mr. Ojo, the Human Rights Committee’s clarification is that “Paragraph 3 of Article 19 of the ICCPR lays down specific conditions and it is only subject to these conditions that restrictions may be imposed, namely that the restrictions must be ‘provided by law’; they may only be imposed for one of the grounds set out in sub-paragraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality.”
He stressed that according to the Human Rights Committee, the only legitimate grounds upon which restriction may be imposed on freedom of expression are to ensure respect for the rights or reputations of others; and for the protection of national security or of public order or of public health or morals.
Besides, Mr. Ojo said, the Committee has also stipulated that it is only the specific forms of expression in Article 20, namely propaganda for war and advocacy for national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence that States are obliged to prohibit by law.
He contended that in any other case in which the State restricts freedom of expression, the State must justify the prohibitions and the restrictions must conform strictly with Article 19 of the ICCPR.
Mr. Ojo noted that the Human Rights Committee “has gone further to lay out quite clearly the limits of any restriction or regulation of online communication” when it stated that any “restrictions on the operation of websites, blogs or any other Internet-based, electronic or other such information dissemination system, including systems to support such communication, such as Internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3” of Article 19 of the ICCPR.
Explaining the elements of these guidance, he said they include the fact that permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3; and that “It is also inconsistent with paragraph 3 to prohibit a site or an information dissemination system from publishing material solely on the basis that it may be critical of the government or the political or social system espoused by the government”.
Mr. Ojo argued that the establishment of guiding principles had become imperative as many governments in Africa had neither the legal nor technical competence to navigate the complex issues surrounding the regulation of Internet and digital communication even in an era when most of them are scrambling to adopt legislation to regulate these issues.