SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
Court justified the decision that imposing a restriction on internet access amid social unrest is constitutionally valid since “the government acted ‘within reason’ to forestall threats to public order.” The Court also
noted that the government has a responsibility of “preventing the dissemination and use of electronic information and/or electronic documents that have prohibited contents in accordance with statutory provisions,”
especially since the characteristics of the internet allow for the widespread of illegal content, which would
adversely impact the society.114
Cases of judicial deference
Among the national judgements analysed for the purposes of this paper, it is important to note several
cases where the judiciary acknowledges and accepts the existence of a legal framework that contemplates
the possibility of limiting or the complete termination of internet access (particularly for reasons of national
security or public order), and at the same time upholds the assessment made by executive bodies or agencies
regarding the need for the adoption of specific restrictive measures.
A very relevant case in this field is the decision of 2018 of the Supreme Administrative Court of Egypt
regarding the suspension of communications and internet shutdown during the 2011 Egyptian Revolution.
This judgement overturned the decision of the first instance administrative court which had levied a EGP
540 million fine against former President Mubarak, and both his Prime Minister and Interior Minister, for
imposing a complete suspension of mobile services on the 28th of January 2011 and a blanket shutdown of
internet services on the same day until the 2nd of February. The telecommunication companies had previously explained that the sudden shutdown was undertaken in compliance with the orders of the competent
authorities rendered in accordance with the contracts between the companies and the government, which
empowers the latter to issue such orders in case of national security threats.
The first instance court emphasised the fact that “telecommunication and internet services are closely
related to a set of fundamental rights and freedoms, such as freedom of expression, the right to communicate, the right to privacy, the right to internet access, the right to know, the right to information, and the
interconnected rights: the right to development and the right to life. Therefore, restricting these services by
cutting, banning, preventing, or throttling them is a violation of these rights and freedoms that adversely
affects the legitimacy of the shutdown order. The Court noted further that although the Government had
invoked national security as a reason for the shutdown order, it concealed the true motive behind such order
which was the protection of the regime, not the State. The Court eventually ruled that the shutdown order
lacked legitimate legal basis, representing an abuse of power and a deviation from the public good. Thus
it was a violation of the constitution and the law and constituted an infringement on several fundamental
rights.
114 Katitza Rodrigues, Indonesian Court Allows Internet Blocking During Unrest, Tightening Law Enforcement Control Over Users’
Communications and Data, Electronic Frontier Foundation, 23 November 2021, https://www.eff.org/deeplinks/2021/11/indonesian-court-allows-internet-blocking-during-unrest-tightening-law-enforcement; Agustinus Beo Da Costa and Stanley Widianto, Indonesian internet
blocks amid social unrest lawful, court rules, Reuters, October 27, 2021, https://www.reuters.com/business/media-telecom/indonesian-internet-blocks-amid-social-unrest-lawful-court-rules-2021-10-27/; Global Voices South East Asia, Indonesian court allows internet blocking amid
social unrest, 9 November 2021, https://advox.globalvoices.org/2021/11/09/indonesian-court-allows-internet-blocking-amid-social-unrest/
38
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