This position paper is informed by monitoring conducted by the African Declaration on Internet Rights and Freedoms (AfDec) Coalition of developments relating to the COVID-19 pandemic. Various measures adopted by states and other relevant stakeholders have had a direct impact on the enjoyment of rights online. This position paper consolidates the Coalition members’ assessment of, and positions on, the protection, promotion and exercise of human rights online as African states respond to the COVID-19 pandemic.
The paper focuses on five key areas found in the African Declaration on Internet Rights and Freedoms, namely:
- Internet access and affordability
- Regulation of content online
- Privacy, surveillance and data protection
- The right to information.
The positions in this paper are made mainly with reference to the African Declaration, as well as the newly adopted Declaration of Principles on Freedom of Expression and Access to Information in Africa of the African Commission on Human and Peoples’ Rights (ACHPR Declaration). Furthermore, consideration has also been given to the April 2020 report by the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression regarding the exercise of the right to freedom of expression in the context of disease pandemics. These resources provide guidance on the triad of information rights – freedom of expression, access to information and privacy – as well as their interplay with other associated rights.
At the outset, it must be noted that any limitation of a right – including the rights to freedom of expression, access to information and privacy – must comply with the three-part test for a justifiable limitation under international law. The three-part test mandates that a restriction must be prescribed by law; serve a legitimate aim; and be a necessary and proportionate means to achieve the stated aim in a democratic society. It bears noting that with regard to any limitation of the right to freedom of expression, the ACHPR Declaration establishes: "States shall ensure that any law limiting the rights to freedom of expression and access to information: a) is clear, precise, accessible and foreseeable; b) is overseen by an independent body in a manner that is not arbitrary or discriminatory; and c) effectively safeguards against abuse including through the provision of a right of appeal and impartial courts."
The ACHPR Declaration further explains that a limitation will be considered to serve a legitimate aim where the objective of the limitation is to preserve respect for the rights or reputations of others, or to protect national security, public order or public health. Importantly, in order to be necessary and proportionate, the limitation must originate from a pressing and substantial need that is relevant and sufficient; have a direct and immediate connection to the expression and disclosure of information, and be the least restrictive means of achieving the stated aim; and be such that the benefit of protecting the stated interest outweighs the harm to the expression and disclosure of information, including with respect to the sanctions authorised.
While this paper focuses on recommendations to states, regulators and the private sector, the Coalition also encourages other civil society actors and digital rights activists to engage in advocacy to promote these reforms in line with the African Declaration and human rights standards.