Facts
The applicants, L’association des Utilisateurs des Technologies de l’Information et de la Communication (AUTIC) and Mr. Ndiaga Gueye, filed a case before the ECOWAS Court of Justice against the Republic of Senegal. They alleged that Senegal violated their digital and human rights by restricting access to the internet and social media platforms during politically sensitive periods, particularly around demonstrations and elections. The applicants argued that these restrictions amounted to violations of freedom of expression, access to information, and the right to participate in democratic processes. They also claimed that such shutdowns disproportionately affected users’ economic and social activities, undermining both individual rights and collective interests.
The respondent, the Republic of Senegal, defended the measures as necessary for public order, national security, and the prevention of violence during times of unrest. Senegal contended that the shutdowns were temporary, targeted, and within its sovereign rights. The state also argued that the Court lacked jurisdiction to interfere with what it considered internal security measures.
Issue
The Court was asked to determine:
Whether the internet and social media restrictions imposed by Senegal violated the applicants’ rights to freedom of expression, access to information, and participation in public affairs as protected under international human rights law and the African Charter.
Whether Senegal’s justifications of national security and public order were sufficient to override these fundamental rights.
Whether the ECOWAS Court of Justice had jurisdiction to review such state measures in light of claims of human rights violations.
Rule
The Court relied on:
Article 9(4) of the ECOWAS Supplementary Protocol granting it jurisdiction over alleged human rights violations.
Article 9 of the African Charter on Human and Peoples’ Rights protecting the right to receive and impart information.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) guaranteeing freedom of expression and its permissible limitations only under strict necessity and proportionality.
Established ECOWAS jurisprudence recognising access to the internet as an enabler of human rights in the digital era.
Analysis
The Court examined whether Senegal’s internet restrictions met the three-part test of legality, legitimacy, and proportionality:
Legality: While Senegal argued that its domestic laws permitted temporary shutdowns, the Court found these laws lacked clear safeguards against abuse and did not provide adequate transparency or oversight.
Legitimacy: Public order and national security were recognised as legitimate grounds to impose certain restrictions. However, the Court noted that such measures must be exceptional and necessary, not routine or preventive.
Proportionality: The Court held that blanket internet and social media shutdowns were excessive and disproportionate, as they affected millions of users indiscriminately, stifling not only harmful speech but also lawful expression and economic activity.
The Court emphasised that in the digital age, access to the internet is integral to exercising civil and political rights. It also stressed that states must seek less intrusive alternatives, such as targeted content moderation or judicially supervised restrictions, rather than sweeping shutdowns.
Conclusion
The ECOWAS Court concluded that Senegal violated the applicants’ rights to freedom of expression, access to information, and participation in democratic life by imposing disproportionate internet and social media shutdowns. The Court confirmed its jurisdiction to adjudicate the matter, rejecting Senegal’s sovereignty argument.