Iran began shutting down the internet on September 19, 2022 in response to protests in the wake of Mahsa Amini’s death in police custody. The shutdown began with blocking text messages containing Amini’s name, and has since expanded to a near internet blackout. Iran has cited national security reasons and is targeting social media platforms, vital lines of communication for both protesters and journalists. The present shutdown is but one example of what has become a go-to tool for governments when dealing with civil unrest. In 2021, the internet was intentionally disrupted at least 182 times in 34 countries. Internet shutdowns foster the spread of disinformation as news cannot be corroborated, bar people from expressing themselves freely, harm the economy, hinder education, prevent tax payments, and cut people off from healthcare services. Ultimately, states have an obligation to leave internet and telecommunications services in place in most, if not all, instances under international law. The human rights law regime provides a strong basis for prohibiting internet shutdowns.

The United Nations lays out several fundamental human rights that are relevant: freedom of expression, social security, medical care, education, and work. The United Nations expressly recognized this when the Human Rights Council acknowledged that the internet is increasingly important to the exercise of these human rights, particularly of the right to freedom of expression. The Human Rights Council affirmed in 2012 “that the same rights that people have offline must also be protected online.” The United Nations built upon this acknowledgement in another resolution in 2014, stating that “access to information . . . facilitates vast opportunities for affordable and inclusive education.” This idea was applied by the Indian High Court in Shirin R.K. v. State of Kerala, holding that restricting the use of mobile phones in a hostel infringes upon the right to education.

The Universal Declaration of Human Rights states that the exercise of human rights is “subject only to such limitations as are determined by law solely for the purpose of” recognizing the rights of others “and of meeting the just requirements of morality, public order and general welfare in a democratic society.”  The International Covenant on Civil and Political Rights further states that “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed,” parties may “take measures derogating from their obligations . . .  to the extent strictly required by the exigencies of the situation.” This means that any disruption of internet services must fulfill the strict requirements of legality, legitimacy, necessity, and proportionality. Legality refers to the idea that an internet shutdown must be rooted in domestic law. Legitimacy means that an internet shutdown must be rooted in enumerated human rights law. For example, the International Covenant on Civil and Political Rights states that the right to freedom of expression can only be restricted for the rights of others or for the protection of national security, public order, public health, or morals. Additionally, the internet shutdown must be necessary to achieve that legitimate purpose. Finally, it must be proportional, in that the legitimate purpose must be of sufficient importance to justify the scope of the restriction of rights.

In 2017, the ECOWAS Community Court applied the principle of legality and legitimacy to a case stemming from the Togolese government’s actions cutting off access to the internet and telecommunications services during civil unrest. The court first found that internet access, while not a fundamental right itself, is a “derivative right” of the right to freedom of expression. Therefore, the court stated that any interference with the right must be “provided for by the law specifying the grounds for such an interference.” The government justified their action based on national security, claiming that the protests had the “potential to degenerate into a civil war.” Though the court stated that national security could be a valid justification for derogating from the right to freedom of expression, there was no national legislation providing the means by which the right could be derogated from. Therefore, the shutdown, because it was not legal, was a violation of the right to freedom of expression.

In Womah Mukong v. Cameroon, a case involving the arrest of a journalist, the U.N. Human Rights Committee stated that “the legitimate objective of safeguarding and . . . strengthening national unity under difficult political circumstances cannot be achieved by attempting to muzzle advocacy of multi-party democracy, democratic tenants and human rights.” Therefore, even before reaching the question of necessity, the Committee found that maintaining national unity is an impermissible justification for an internet shutdowns, as protesting, advocating, and voicing opposition are all necessary in free, democratic societies.Under this argument, the majority of justifications used by States, including preventing disinformation, quelling protests, and even stopping cheating are all likely impermissible. This is especially true as the value of uninhibited expression is particularly high during times of public debate in a democratic society.

Even a legal, legitimate, and necessary internet shutdown would often be prohibited by its lack of proportionality. For example, a more targeted shutdown (e.g. shutting down access to a single town or blocking access to a few applications) is more likely to be proportional, as it would restrict fewer rights and be more likely to meet a legitimate need. However, even targeted internet shutdowns hinder a number of different human rights such as freedom of expression, the right to medical care, the right to education, and more. Further, total blackouts wipe out access to an almost innumerable number of individuals, and therefore may never be proportionate to a legitimate aim. In light of the lack of proportionality of any sweeping information blackout, The United Nations issued a joint resolution in 2015, stating that “filtering of content on the Internet, using communications ‘kill switches’ (i.e. shutting down entire parts of communication systems) . . . are measures which can never be justified under human rights law.” A subsequent resolution by the United Nations Human Rights Council condemned the use of deliberate internet shutdowns, even those that are more targeted, stating that “measures to intentionally prevent or disrupt access to or dissemination of information online, [violates] international human rights law.”

Overall, the international human rights regime provides a strong basis to prohibit internet shutdowns based on their  lack of legality, legitimacy, necessity, and proportionality.

Patricia Murphy-Geiss is a 3L student at Georgetown University Law Center completing the last year of her J.D. program at Sciences Po in Paris. She is a Global Law Scholar studying international law, a digital editor for the Georgetown Journal of International Law, and was awarded the Best Prosecutor in the 2022 International Criminal Court Moot Court Competition.  She has master’s degrees in public affairs and environmental science, and graduated with her BA from Grinnell College, where she studied history. Previously, Patty worked on environmental and health issues in Togo as a Peace Corps Volunteer and at Gobabeb Namib Research Institute in Namibia.