The African Commission on Human and Peoples’ Rights (ACHPR) is revising its Declaration of Principles on Freedom of Expression in Africa to address new technological advances, online activity, and internet restrictions throughout Africa, and is requesting input from stakeholders. [ACHPR Press Release] The Special Rapporteur on Freedom of Expression and Access to Information in Africa invites comments from civil society, States parties, and others on a new draft Declaration of Principles on Freedom of Expression and Access to Information in Africa. [ACHPR Press Release] The Draft Declaration, currently available in English, French, and Portuguese, follows from a series of resolutions adopted by the African Commission in 2012 and 2016, mandating updates that better address the impact of the internet and digital technologies on the right to freedom of expression and access to information. [ACHPR Press Release] Civil society submissions should be emailed to the Secretariat of the African Commission at [email protected] by July 1, 2019. [ACHPR Press Release]
The Draft Declaration is divided into five distinct sections: 1) General Principles, 2) Freedom of Expression, 3) Right of Access to Information, 4) Freedom of Expression and Access to Information on the Internet, and 5) Implementation. See ACHPR, Draft Declaration of Principles on Freedom of Expression and Access to Information in Africa, 30 April 2019. The Draft Declaration considerably expands on many of the issues addressed in the original Declaration, such as the criteria for evaluating permissible interferences to the right to freedom of expression and the right of access to information, while also elaborating new areas of concern along with the necessary standards of protection, including a general principle dedicated to the “Protection of the Right to Freedom of Expression and the Right of Access to Information Online.” See id. at paras. 5-6, 10-13; ACHPR, Declaration of Principles on Freedom of Expression in Africa, 23 October 2002.
Whereas the original Declaration from 2002 did not mention the internet, the Draft Declaration devotes an entire sub-section specifically to the protection of these rights in an online context. See Draft Declaration of Principles on Freedom of Expression and Access to Information in Africa, 30 April 2019, paras. 84-100. While the new text generally states that the same rights that are protected offline are protected online, the section also introduces further considerations related to marginalized communities and internet intermediaries, for example, that the internet raises in people’s ability to enjoy these rights. See id.
The Draft Declaration underscores a view that access to the internet is now necessary in contemporary society for the full realization of both the rights to freedom of expression and access to information. See id. at para. 84. This imposes a positive obligation on States to “adopt laws, policies and other measures to provide universal, equitable, affordable and effective access to the internet without discrimination.” See id. at para. 86. The Draft Declaration also notes the need for additional focus on ensuring access to the internet for marginalized communities and children. See id. at paras. 87-88. Additionally, it clarifies that States must avoid all unnecessary interference with access to the internet, noting that any attempts at “removing, blocking, and filtering” or indirectly inhibiting the provision of online information will result in a violation of the rights to freedom of expression and access to information unless they meet the justification standards established in international human rights law. See id. at paras. 89, 92.
The Draft Declaration also covers State responsibilities with respect to “internet intermediaries,” by both protecting them from punishment and other liabilities in the provision of their services and by ensuring that these third party actors don’t leverage their positions to interfere with the rights of people in the country. See id. paras. 93-96. Importantly, the Draft Declaration provides specific criteria for when a State may require an internet intermediary to remove user content:
“States shall not require the removal of online content by internet intermediaries unless the request for removal is:
a. clear and unambiguous;
b. imposed by an independent and impartial judicial authority;
c. subject to due process safeguards;
d. justifiable and compatible with international human rights law; and
e. implemented through a transparent process that allows a right of appeal.”
See id. at para. 95.
Finally, in the “privacy and protection of personal information” section, the Draft Declaration specifically states that anonymous expression is protected and that State efforts to weaken encryption are only allowed if they meet the requirements established by international human rights law. See id. at paras. 97-99. And, the Draft outlines guidelines on the consent and transparency requirements that States must follow when accessing or using personal information. See id. at paras. 97-100.
Increasing Attention on Human Rights and the Internet in Africa
Recent waves of restrictions on freedom of expression and access to information on the African continent have been met with the concern and criticism of human rights experts. [IJRC] Internet shutdowns have become a popular tool over past years, with the governmental interferences in internet access in eight different African countries from 2018 through the start of this year prompting statements from the ACHPR, the African Special Rapporteur on Freedom of Expression and Access to Information, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, and civil society groups urging these governments to respect rights. [IJRC]
Lack of access to information online also hinders civil society’s ability to participate before supranational bodies, including the ACHPR. Currently civil society members from around the world are convening for RightsCon 2019, a four-day summit on human rights in the digital age taking place in Tunis, Tunisia. IJRC has organized a session at RightsCon with the goal of establishing standards that will improve the way supranational human rights bodies share information online. See RightsCon 2019, If I can’t find it, it’s not the law: toward minimum standards for access to human rights law and information. Previously, IJRC published a report on civil society’s access to the ACHPR, which examines barriers, both formal and informal, to attending and participating in ACHPR sessions in particular. See IJRC, Civil Society Access to International Oversight Bodies: African Commission on Human and Peoples’ Rights (2018).
For more information on the African human rights system, the Special Rapporteur on Freedom of Expression and Access to Information in Africa, UN human rights mechanisms and special procedures, and IJRC’s series examining the barriers to human rights defenders’ engagement with supranational oversight bodies visit IJRC’s Online Resource Hub. Factsheets outlining each country’s international human rights obligations are available on our Country Factsheets: Africa page. To stay up-to-date on international human rights news, visit IJRC’s News Room or subscribe to the IJRC Daily.