SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION The UN Special Rapporteur observed that shutdowns ordered covertly, or without an obvious legal basis, violate the legality requirement. Shutdowns ordered pursuant to vaguely formulated laws and regulations also fail to satisfy it.53 In this context, the UN Special Rapporteur observed that “[t]he failure to explain or acknowledge shutdowns creates the perception that they are designed to suppress reporting, criticism or dissent.” 54 Legitimacy. Any restriction on freedom of expression, and other rights protected under international law, must also pursue a legitimate goal in line with the grounds specified therein and be necessary to achieve that goal. The list of aims in the international treaties cited above is exclusive, meaning that no other aims are considered to be legitimate as grounds for restricting freedom of expression. The Report of the Office of the UNHCHR observed that “[w]hen States impose Internet shutdowns or disrupt access to communications platforms, the legal foundation for their actions is often unstated. When laws are invoked, the applicable legislation can be vague or overly broad, which would fail to meet the requirements of article 19 (3). For example, a law referring to public order or national security that does not more specifically address the surrounding circumstances and conditions for Internet shutdowns is likely not sufficiently precise.” 55 Proportionality. A restriction must also be the least intrusive option available and must not impair the essence of the right.56 A due assessment of the effectiveness of the restriction and risks of over-blocking is to be made. “This assessment should determine whether the restriction may lead to disproportionate banning of access to Internet content, or to specific types of content, and whether it is the least restrictive means available to achieve the stated legitimate aim.” 57 Given their indiscriminate and widespread impacts, internet shutdowns very rarely meet the proportionality test. 58 Their duration and geographical scope may vary, but shutdowns are generally disproportionate. Given the number of essential activities and services they affect, shutdowns restrict expression and interfere with other fundamental rights. 59 53 Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 30 March 2017, A/ HRC/35/22, Para 9-10, https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/35/22. 54 Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 30 March 2017, A/ HRC/35/22, Para 12, https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/35/22. 55 Internet shutdowns: trends, causes, legal implications and impacts on a range of human rights Report of the Office of the United Nations High Commissioner for Human Rights, 13 May 2022, A/HRC/50/55, Para 11, https://www.ohchr.org/en/documents/thematic-reports/ ahrc5055-internet-shutdowns-trends-causes-legal-implications-and-impacts. 56 Internet shutdowns: trends, causes, legal implications and impacts on a range of human rights. Report of the Office of the United Nations High Commissioner for Human Rights, 13 May 2022, A/HRC/50/55, Para 12, https://www.ohchr.org/en/documents/thematic-reports/ ahrc5055-internet-shutdowns-trends-causes-legal-implications-and-impacts. 57 Recommendation CM/Rec(2016)5[1] of the Committee of Ministers of the Council of Europe to member States on Internet freedom (Adopted by the Committee of Ministers on 13 April 2016 at the 1253rd meeting of the Ministers’ Deputies), https://search.coe.int/cm/Pages/ result_details.aspx?ObjectId=09000016806415fa 58 Internet shutdowns: trends, causes, legal implications and impacts on a range of human rights Report of the Office of the United Nations High Commissioner for Human Rights, 13 May 2022, A/HRC/50/55, Para XXX, https://www.ohchr.org/en/documents/thematic-reports/ ahrc5055-internet-shutdowns-trends-causes-legal-implications-and-impacts 59 Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 30 March 2017, A/ HRC/35/22, Para 15, https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/35/22. 16