[kictanet] Anti-Shutdown Policy and Human Rights

[Andrew Alston]

Hi All,

As some of you may have seen - the latest draft of the anti-shutdown policy has been published on the AFRINIC lists.

While once again, the authors need to draw attention to the fact that we know that the policy isn't perfect - and we know that it still needs a lot of revision before it can ever become reality, we still hope that the dialog created by the policy will continue to spur the debate until real solutions can be found.  As we have said in other forums, we also believe that the timing is right for this debate, especially since there are limited places on the continent where this debate could be held where the debate itself would not get instantly shut down - and Kenya is one of those places, since the Kenyan government has shown a willingness to dialog and discuss when compared to certain other places.

There are however some interesting parts in the new draft which I thought I'd elaborate on a little bit, specifically the fact that in the introduction paragraph, we have opted to make reference to the Universal Declaration of Human Rights.  My thanks to the individuals who contributed and drew our attention to certain parts of this.

Specifically - I thought that for the sake of discussion, I'd point out certain things here and see what the rest of the KictaNet community thought about the interpretation we are using when we apply these clauses to our thinking.

So, firstly, Article 12 reads "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

Now, the most interesting part of that is where it reads "or correspondence", because it can certainly be argued that internet communication is a form of correspondence.  Email, whatsapp, social media, all of them amount to methods of correspondence between individuals.

Then, moving to Article 19.  "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

Again, the Internet is a form of media - and by stating that individuals have the right of expression through any media, this can be extrapolated to say that the removal of a form of media in an attempt to remove freedom of expression is a violation of the declaration of human rights.

Finally, moving to Article 20, specifically Article 20.1, it reads: "(1) Everyone has the right to freedom of peaceful assembly and association."

This is probably the most contentious assertion - can a virtual online meeting place be considered an assembly and hence protected under this right.  I did a fair amount of research into this and there is some very interesting case law about this.

Specifically - In 2001, a guy called Andreas-Thomas Vogel ran a website in Germany that called for action against Lufthansa Airlines (basically denial of service) - he was arrested on charges of coercion, and initially a lower court in Frankfurt found him guilty, primarily due to the economic losses suffered by Lufthana Airlines during the online campaign.  However, on appeal, a higher court overturned this ruling, stating that the online demonstration did not constitute a show of force, but was intended to the influence public opinion - effectively stating that online demonstrations were both a legitimate form of protest and real.  Effectively, the attack that was encouraged was viewed as a form of virtual sit-in against the airline. A Libertad spokesperson then went on to say "Althought it is virtual in nature, the Internet is still a real public space"

Now, obviously, that's in Germany and not in a lot of other countries, indeed in the US, under the CPAA they have taken a completely opposite approach to things like denial of service - however, it does raise an interesting question.  If you can in fact have a virtual sit-in online - then it stands to reason that the right of peaceful assembly extends to the virtual world - and would include virtual assembly on the Internet - and hence an internet shutdown would be a violation of Article 20.1

I'd love to see more interpretations and debates on this issue though - and I'm hoping to see some debate on this at the PDP meeting on Nairobi on the 31st - all of you are welcome at that PDP meeting by the way, at the Boma Hotel, starting at 9am and running through to 5:30pm where we will be debating a whole range of policies including the anti-shutdown policy.

Hope to see you all there!

Andrew

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