Credit: Lawrence Mute via Twitter
The African Commission on Human and Peoples’ Rights (ACHPR) has published a new Declaration on Principles of Freedom of Expression and Access to Information in Africa (Declaration), which replaces its 2002 principles on freedom of expression, and expands the guidance to States on access to information and digital rights. [ACHPR Press Release] The Declaration – a soft law document that interprets Article 9 (right to receive information and free expression) of the African Charter on Human and Peoples’ Rights – consists of 43 principles, including principles on access to the internet, internet intermediaries, privacy protections, and communication surveillance, as well as on the Declaration’s implementation. See ACHPR, Declaration of Principles of Freedom of Expression and Access to Information in Africa (2019). The ACHPR Special Rapporteur on freedom of expression and access to information led the Declaration’s drafting, and the ACHPR adopted the final Declaration during its 65th Ordinary Session in November 2019. [ACHPR Press Release]
Declaration
The Declaration, which is currently available only in English, is divided into five parts: (1) General Principles; (2) Right to Freedom of Expression; (3) Right to Access to Information; (4) Freedom of Expression and Access to Information on the Internet; and, (5) Implementation. See ACHPR, Declaration of Principles of Freedom of Expression and Access to Information in Africa (2019). Notably, the declaration significantly expands on State’s obligations with regard to access to information and develops standards related to new areas of concern, such as oversight mechanisms to resolve access to information disputes and a legal framework on privacy and the protection of personal information. See id. at Principles 26-36, 42. The Declaration requires States to include information on their implementation of the Declaration in their periodic reports to the ACHPR. See id. at Principle 43. It refers to, and is intended to complement, the ACHPR’s Model Law for African States on Access to Information and its Guidelines on Access to Information and Elections in Africa.
Right to Access to Information
Whereas the 2002 Declaration mentioned access to information in its Preamble, the revised Declaration dedicates an entire section to the right to access to information. See id. at Principles 26-36. In general, the Declaration clarifies what the right to access to information means for individuals, stating that “[e]very person has the right to access information held by public bodies and relevant private bodies expeditiously and inexpensively.” See id. at Principle 26(1)(a). In certain cases, individuals may also have a right to access information from “relevant private bodies,” which are bodies that are “controlled or financed directly or indirectly by public funds” or that carry out public functions. See id. at Principle 26(2). Moreover, the Declaration states that access to information laws must prevail or be prioritized over laws restricting information disclosures. See id. at Principle 27.
The Declaration introduces the principles of maximum and proactive disclosure. See id. at Principles 28-29. Maximum disclosure dictates that access to information may only “be limited by narrowly defined exemptions,” while proactive disclosure requires public bodies and relevant private bodies to disclose information that may be of the public interest in a proactive manner, without waiting for a specific request. See id. The Declaration also articulates a duty for public and relevant private bodies to “create, keep, organize and maintain information.” See id. at Principle 30.
In addition to introducing a procedure for accessing information under Principle 31, the Declaration lays out the “right of further appeal” a refusal to disclose information, which may take place before an oversight mechanism or the courts. See id. at Principles 31-32. With respect to oversight mechanisms, the Declaration provides guidance on the necessary features of a lawful oversight mechanism. See id. at Principle 34. For example, according to Principle 34, oversight mechanisms must be established by law, be independent bodies, and operate in a transparent manner. See id. While the Declaration acknowledges that certain information may be legitimately withheld, in general, exemptions to the right to access to information must “demonstrably outweigh[] the public interest in disclosure.” See id. at Principle 33. Principle 33(4) lays out eight specific situations when it is legitimate to withhold information. See id.
Further, Principle 35 of the Declaration makes clear that individuals cannot be punished for “releasing information on wrongdoing or which discloses a serious threat to health, safety or the environment, or whose disclosure is in the public interest,” and calls on States to adopt laws that protect disclosures that are in the public interest. See id. at Principle 35. Additionally, Principle 36 calls on States to sanction the failure to proactively disclose information and the destruction or damage to information. See id. at Principle 36.
Freedom of Expression and Access to Information on the Internet
Principles 37 to 42 of the Declaration focus specifically on the rights to freedom of expression and access to information in the internet age – a subject not addressed in the 2002 Declaration. See id. at Principles 37-42. Importantly, the Declaration calls on States to “recognise that universal, equitable, affordable and meaningful access to the internet is necessary for the realisation of freedom of expression [and] access to information.” See id. at Principle 37(2). In this regard, the Declaration states that countries must “adopt laws, policies and other measures to promote affordable access to the internet,” particularly for children and marginalized groups. See id. at Principle 37(4-5).
The Declaration articulates State obligations with respect to internet intermediaries, noting that States must ensure that internet intermediaries provide access to the internet in a non-discriminatory manner and that the use of algorithms or other artificial intelligence uses do not infringe on international human rights standards. See id. at Principle 39. The Declaration also provides guidance to States regarding requests to remove online content, outlining five specific requirements. Requests must be:
- “clear and unambiguous;
- imposed by an independent and impartial judicial authority, subject to sub-principle 5;
- subject to due process safeguards;
- justifiable and compatible with international human rights law and standards; and
- implemented through a transparent process that allows a right of appeal.”
See id. at Principle 39(4).
The Declaration directly addresses the protection of personal information and communication surveillance in the context of the right to privacy. See id. at Principles 40-42. In doing so, the Declaration establishes a legal framework for the protection of personal information that requires States to adopt laws regulating the processing of personal information. See id. at Principle 42. Under the legal framework outlined in Principle 42, States must ensure that individuals consent to the processing of their personal information; the processing of personal information is “in accordance with the purpose for which it was collected” and not excessive; the information is deleted when the process is complete; the processing is transparent; and, the information is kept confidential and “secure at all times.” See id.
Additionally, under the legal framework outlined in Principle 42, individuals must have access to the personal information that is being processed and must be given an opportunity to object to the processing. See id. Individuals must also be notified if an unauthorized person has accessed their information, and must have access to “legal recourse to effective remedies in relation to the violation of their privacy.” See id.
Additional Information
For more information on the African human rights system, the Special Rapporteur on Freedom of Expression and Access to Information in Africa, or human rights and the internet in Africa, 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.