Nani Jansen Reventlow is a human rights lawyer with Doughty Street Chambers in London and a Fellow at the Berkman Klein Center for Internet & Society at Harvard University. Jonathan McCully is Legal Officer with the Media Legal Defence Initiative. You can follow them @InterwebzNani and @Jonny_McCully.
As the next billion people move online, governments worldwide are adopting legislation that curtails free expression rights on the internet. Pushing back against this trend is important to safeguard one of the most fundamental freedoms. If done right, it can even promote the internet’s original purpose as a “universal space” of information where information can be exchanged freely, strengthening democracies around the world.
A number of recently adopted laws purportedly aim to combat criminal activity online, which may be perceived as a noble cause. They often follow closely the model of the Council of Europe Convention on Cybercrime (also called the Budapest Convention), or its African counterpart the African Union Convention on Cyberspace Security and Protection of Personal Data. Amongst the countries currently considering "cybercrime" laws are South Africa, Zimbabwe, Trinidad and Tobago and Brazil. Other countries, such as Tanzania, Nigeria, India and Pakistan, have already adopted such laws. All these laws contain provisions that bear a striking resemblance to each other, and their overbroad and vague nature inevitably criminalize and jeopardize a wide range of internet activity. The copy-paste approach adopted by many countries has resulted in these stifling laws spreading across the globe at a concerning rate.
The recent cybercrime laws and bills have two main issues in common. First, they create an array of speech crimes and, second, they lack protection for journalistic sources and those publishing anonymously in the public interest. While rumors about the Trinidadian bill including anti-"fake news" provisions have turned out to be incorrect, the bill still contains provisions that could severely impact media freedom, such as penalizing reports on corporate corruption. Its application could also result in the criminal prosecution of bloggers and other internet users for the smallest of infractions, such as violating a website’s terms of service. The impact of overbroad laws targeting speech online has been seen in Nigeria and India. The Nigerian Cybercrimes Act has been used to prosecute individuals who alleged that public officials had been having extramarital affairs. In India, a girl was arrested for merely “liking” a post on Facebook. All examples that show the level of suppression of speech these laws allow for.
Clamping down on online speech is not a new phenomenon; cybercrime legislation is the latest incarnation of a longer-existing trend. Azerbaijan extended its defamation laws to the internet in 2013, to which it added specific provisions making defamation of the President online a criminal offence. Publishing on the internet usually is an aggravating factor for other criminal offences, such as defamation, as is demonstrated by legislation in Italy.
Cybercrime legislation also generally comes with wide powers of search, seizure and disclosure which can threaten whistleblowers, journalistic sources and anonymity online. Nigeria’s Cybercrimes Act, for example, provides that an internet service provider must retain and release user data (including content data) at the request of the Nigerian Communications Commission. The Tanzania Cybercrimes Act gives the police the authority to request user data for the purpose of carrying out an investigation. In 2016, Maxence Melo, founder and owner of the Tanzanian online news platform Jamii Forums – which has the tagline "The Home of Great Thinkers. Where we Dare to Talk Openly!" – was arrested after refusing to hand over to the authorities information that could be used to identify anonymous website contributors.
The Universal Declaration of Human Rights guarantees the right to "seek, receive and impart information and ideas through any media and regardless of frontiers", as does the International Covenant on Civil and Political Rights and the main regional human rights treaties. As the next millions of people move online over the coming years, especially in Africa and Asia where these laws have become prevalent, it is crucial that this right is protected to safeguard the free flow of information online.
Practice shows that pushing back on restrictions to online expression is worthwhile. An option that has had some success is challenging these laws in court. The Indian Supreme Court in 2015 scrapped a provision criminalizing “offensive messages” online, under which a girl was criminally prosecuted for a Facebook "like". The Supreme Court found that the provision unnecessarily curbed the right to freedom of expression. A similar provision was also struck down in Kenya on the same ground. Another avenue is to lobby for change before these laws are passed. Mexico scrapped its Cybercrime Bill after severe criticism from internet users and activist groups, including Anonymous, which triggered a public backlash. South Africa improved its bill drastically after civil society campaigned relentlessly.
What is not an option, is not fighting back. Not when the right to freely use one of the most crucial information and communication platforms of our time is at stake.