State Obligations to Respect and Ensure Freedom of Expression Online
16. All States are obligated to respect and ensure the human rights guaranteed under applicable
international instruments. As this Honourable Court noted in SERAP v Nigeria, ECOWAS
Member States are required to give effect to human rights treaties through legislative means,
while ensuring access to an effective remedy.31 Togo, as a party to the ICCPR, is required to
abide by Article 19, which, similar to Article 9 of the African Charter on Human and
Peoples’ Rights, protects the right to freedom of expression.32
17. The U.N. General Assembly has broadly condemned undue restrictions that prevent Internet
users from having access to or disseminating information, because these restrictions are often
linked with governmental attempts to stifle pro-democracy movements or to disrupt peaceful
protests.33 Human Rights Council Resolution 24/5 “reminds States of their obligation to
respect and fully protect the rights of all individuals to assemble peacefully and associate
freely, online as well as offline.”34 Indeed, the General Assembly and Human Rights Council
have both recognized that the “same rights that individuals exercise offline must also be
protected online.” 35
18. The Committee has emphasized that “[a]ny restrictions on the operation of websites, blogs or
any other Internet-based, electronic or other such information dissemination system,
including systems to support such communication, such as Internet service providers or
search engines, are only permissible to the extent that they are compatible with [Article
19(3)].”36 Any such restriction must not put the right itself in jeopardy, and “the relation
between right and restriction and between norm and exception must not be reversed.”37
Importantly, the Committee has found that “generic bans” that are not content-specific are
not compatible with Article 19.38
19. To be consistent with ICCPR Article 19(3), any restriction on the right to freedom of
expression must be (i) provided by law; (ii) serving a legitimate purpose; and (iii) necessary
and proportional to such purpose.39 The State bears the burden to show that it has met all
three of these conjunctive requirements.40
31
Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria and Universal Basic
Education Commission, No. ECW/CCJ/APP/0808.
32
ICCPR Article 19 also protects “the right to hold opinions without interference.” Internet shutdowns infringe on
this right, in addition to the right to freedom of expression, because they interfere with the formulation and
development of opinions by preventing the exchange and receipt of information and ideas.
33
U.N. Doc. A/HRC/RES/38/11 (16 July 2018), https://undocs.org/A/HRC/RES/38/11.
34
U.N. Doc. A/HRC/RES/24/5 (8 October 2013), https://undocs.org/en/A/HRC/RES/24/5.
35
U.N. Doc. A/RES/68/167, 3 (18 December 2013), https://undocs.org/en/A/RES/68/167; U.N. Doc.
A/HRC/RES/26/13, at 1 (14 July 2014), https://undocs.org/en/A/HRC/RES/26/13.
36
General Comment 34, para. 43. The Committee has also stated that “States parties should take all necessary steps
to . . . ensure access of individuals [to the Internet].” Id., para. 15.
37
U.N. Human Rights Committee General Comment No. 27, U.N. Doc. CCPR/C/21/Rev.1/Add.9 (2 November
1999) (“General Comment 27”).
38
General Comment 34, para. 43.
39
See ICCPR, art. 19.
40
See, e.g., General Comment 34, para. 27.
6