QERIM QERIMI*
Introduction
Protest is an inherent part of human history. The process of formation and transformation of democratic polities, old and new, is rooted in protest. † Every new human discovery or technology has exerted its impact and transformed protest, not so much its substance as much as its manifestation. From Gutenberg’s printing press and its impact on the Protestant Reformation; to the role of radio during the People Power Revolution in the Philippines, which ousted the Ferdinand Marcos regime and restored the country’s democracy; to the mobile phone-enabled “Text-Messaging Revolution”—the People Power II Revolution in the Philippines—which allowed information on former President Joseph Estrada’s corruption to be shared widely and, ultimately, deposed him from power; and to the role of “Facebook revolution” during the Arab Spring, human invention has been at the forefront of protest and its many faces, testifying to both the perpetual validity of protest and its indispensable power for change. In all these circumstances, however, technology has either complemented or enhanced, but never (completely) replaced or substituted physical protests.
What we have now, a trend most prominently exposed during the Covid-19 pandemic, is an all-virtual protest, standing in absolute autonomy from the classic physical gatherings. Advances in digital innovation have enabled the creation of a radically new and different space for critique, creativity, community, consensus, conflict, control and common civility. Faced with an unprecedented situation dictated by a lately unforeseen pandemic, many governments took measures encompassing restrictions on a number of internationally guaranteed human rights and fundamental freedoms, including the right to peaceful assembly—the common formal denomination of the notion of protest in international legal discourse.
In many countries, critical voices have emerged in relation to the broad scope of restrictions on people’s right to assemble or the implementation of such restrictions, or other public concerns. Where physical protests were suspended or cancelled, protests were then transferred to online spaces. Environmental activists assembled around Fridays for Future moved their assemblies online. In Hungary, civil society put in place the first online protest on social media to oppose the Hungarian “corona law” and attracted nearly 40,000 viewers. The protest was shut down after half an hour. In Poland, human rights advocates protested virtually against the new abortion bills during Covid-19 lockdown by posting selfies with the #ProtestAtHome hashtag. In the United States, a Pew Research Center analysis of tweets found that the #BlackLivesMatter hashtag on Twitter had been used roughly 47.8 million times between May 26 and June 7, 2020, a hitherto unprecedented figure. According to another survey conducted by Pew Research in June 2020, 54 percent of social media users of ages 18 to 29 responded that they had used social media platforms in the last month to look for information about protests or rallies happening in their area. This indicative list of online protests depicts an inescapable trend of the future. An essential by-product of real life problems, law comes as the next natural step. This Article seeks to contribute to this discussion by delimiting and defining the status and contents of a right to protest online on a global scale.
I. International Legal Foundations of the Right to Peaceful Assembly
In 1948, the Universal Declaration of Human Rights (UDHR) recognized everyone’s right to freedom of peaceful assembly and association (art. 20, § 1). Article 21 of the International Covenant on Civil and Political Rights (ICCPR) reaffirmed and elaborated on this right, as well as set out exceptions to it:
“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”
A number of regional human rights instruments complement this broader international framework, enabling direct enforceability in national jurisdictions, notably the European Convention on Human Rights (ECHR) (art. 11), American Convention on Human Rights (art. 15), American Declaration of the Rights and Duties of Man (art. XXI), African Charter on Human and Peoples’ Rights (art. 11), and Arab Charter on Human Rights (art. 24).
Given the interdependent nature of rights generally and the contents of the right to peaceful assembly specifically, this right is inextricably intertwined with other rights, primarily freedom of association and freedom of expression. Indeed, some of the international instruments such as the ECHR treat assembly and association as part of a singular legal right, secured in article 11, whereas others, such as the ICCPR, provides for two separate rights, codified in articles 21 and 22, respectively. Moreover, the very notion of assembly or protest would be meaningless if stripped of the conditioning cause, dissent, or displeasure which it seeks to express. As stated by the European Court of Human Rights (ECtHR), one of the aims of freedom of assembly is to secure a forum for public debate and the open expression of personal opinions (Ezelin v. France, ¶ 37). The link between the two rights is most apparent where the national authorities’ intervention against an assembly or protest is at least in part related to the “views held or statements made by participants.” (Stankov v. Bulgaria, ¶ 85).
The rights of assembly, association, and expression share a common element of necessary and tolerable critique for democracy and human beings to continue to progress:
“Freedom of expression constitutes one of the essential foundations of a [democratic] society, one of the basic conditions for its progress and for the development of every man. … [I]t is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the [s]tate or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means … that every “formality”, “condition”, “restriction” or “penalty” imposed … must be proportionate to the legitimate aim pursued.” (Handyside v. United Kingdom, ¶ 49).
Likewise, freedom of assembly protects a demonstration that may “annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote.” (Platform Arzte fur das leben v. Austria, ¶ 32).
II. The Case for the Right to Protest Online
To begin with, there is no express articulation in the existing binding corpus of international instruments of a right to protest online. At the same time, there is no prohibition of it. Indeed, the very phrasing of the relevant provisions in the international instruments referenced above is neutral as to the form of manifesting protest. These provisions do not limit the freedom of assembly or the corresponding freedom of association or expression only to physical presence, encounter, or expression. To recall article 21 of the ICCPR: “[t]he right of peaceful assembly shall be recognized;” and article 11 of the ECHR: “[e]veryone has the right to freedom of peaceful assembly and to freedom of association with others…” Given the growing magnitude of digital interaction, one might observe a higher degree of association happening online than offline.
In any event, the relevant judicial praxis, as evidenced by judgments of international courts, has set no bar to applying these rights to events occurring in, or disputes emerging from, the online sphere. For instance, ECtHR jurisprudence has routinely applied the rights and freedoms guaranteed in the ECHR to the internet and new technologies. While no case has been brought to the ECtHR on the specific right to protest online, there are numerous judgments on the right for private and family life, including right to respect for correspondence. Indeed, it would be truly incomprehensible to think of the right to privacy and correspondence as limited to classic, physical context only, which is overshadowed by online interaction. The same is true with regard to the freedom of expression. As observed by the ECtHR, “the nternet has now become one of the principal means by which individuals exercise their right to freedom of expression and information, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest.” (Yildirim v. Turkey, ¶ 54). Any interference from national authorities will constitute a breach of the protected right unless it is prescribed by law, pursues a legitimate aim, and is required to achieve the aim in a democracy (¶ 56). This jurisprudential approach represents a naturally evolved application of the ECHR rights to online contexts. The same standard would be equally applicable to the right to protest online, such as in the scenario when internet service providers and intermediaries can potentially restrict online assemblies or the privacy of participants.
III. Existing Practice and Trends in U.N. Bodies
At a global context, on 6 July 2018, the U.N. Human Rights Council, a 47-member body, adopted by consensus a resolution on “the promotion and protection of human rights in the context of peaceful protests.” The resolution makes clear that, unlike the way it has been understood by some, an assembly does not require a physical gathering of people. Rather, “human rights protections, including for the rights to freedom of peaceful assembly, of expression and of association, may apply to analogous interactions taking place online.” The Human Rights Council expresses concern about undue restrictions that hinder internet users from gathering or sharing information at important political moments, thereby impairing their ability to organize and participate in assemblies. It recognizes that the safe and private usage of communications technology under the protection of international human rights law is essential for the realization of the freedom of expression and the right to peaceful assembly. Hence, the resolution calls on all states to stop or refrain from measures aimed at blocking internet users from obtaining or distributing information online. Although a soft law instrument by formal characterization, the resolution is a significant normative development because it is adopted by consensus under the umbrella of a U.N. organ.
The U.N. General Assembly has subsequently endorsed the Human Rights Council’s position. In a resolution adopted on 17 December 2018, the General Assembly called upon all states to ensure that “the same rights that individuals have offline, including the rights to freedom of expression, of peaceful assembly and of association, are also fully protected online,” in particular by holding back from internet shutdowns and content regulation in a manner that violates international human rights law. The resolution was adopted by a significant 154 votes in favor, none against, and 35 abstentions, yet it failed to pass without a vote.
The U.N. Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has also recognized that digital technology forms an integral part to the exercise of the rights of peaceful assembly and association. The Human Rights Committee, the treaty body that monitors implementation of the ICCPR, has affirmed that the right to peaceful assembly extends to online sphere. In its General Comment No. 37 on article 21 of the ICCPR, the Committee clarifies that this provision “protects peaceful assemblies wherever they take place: outdoors, indoors and online; in public and private spaces; or a combination thereof.”
Although all the instruments discussed above fall under the notion of “soft law” rather than representing legally binding obligations, they are nonetheless authoritative and unanimous in conceiving the application of relevant “hard law” framework to the rights to freedom of peaceful assembly and association online. Therefore, international law ought to protect the right to protest online.
IV. Process, Prospects, and Problems of the Realization of a Right to Protest Online in Real-Life Settings
Despite the existence of a clear and strong international legal protection of the right to peaceful assembly, this right is not absolute. In law and reality, it means that the right is subject to limitations. Such limitations, although clearly expressed in legal terms, provide space for potential contention and abuse. The general international human rights standard requires any restriction be (1) prescribed by law; (2) necessary in a democratic society; and (3) in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights or freedoms of others. Similarly in the digital context, the freedom to access and use digital technologies for purpose of exercising the right to freedom of peaceful assembly constitutes the default, with limitations being the exception. Whenever such exceptions are invoked, it is incumbent upon states to demonstrate the necessity of the restrictions and implement them only to an extent proportionate to the pursuance of legitimate aims. In no case can a restriction be applied or invoked in a manner that would result in the impairment of the essence of the right (Human Rights Committee, General Comment No. 31).
Being “one of the foundations” of a democratic society, the right to freedom of peaceful assembly should not be interpreted restrictively, unless in gatherings where the organizers and participants have violent intentions, actually incite violence, or otherwise reject the foundations of a democratic society. In order to avert the risk of a restrictive interpretation, the ECtHR has “refrained from formulating the notion of an assembly, which it regards as an autonomous concept, or exhaustively listing the criteria which would define it.” (Navalnyy v. Russia, ¶ 98). However, in its relevant jurisprudence, the ECtHR has clarified that the right to freedom of assembly covers “both private meetings and meetings in public places,” and can be exercised by “individual participants and by the persons organising the gathering.” (Kudrevičius v. Lithuania, ¶ 91). It is of distinct significance that a violation of, or interference with, the right to freedom of peaceful assembly does not need to amount to an outright ban of assembly, be it legal or de facto, but can consist in various other measures imposed by public authorities. The existing case law of the ECtHR has provided several examples (Kudrevičius v. Lithuania, ¶ 100), which could apply and be equally valid to an online context. A prior ban can create a chilling effect on those who may plan to participate in a protest and thus arise to the level of interference, even if the protest subsequently proceeds without obstruction from the authorities. A prior ban of an online platform intended to serve as a venue of protest can likewise have a chilling effect on those planning to participate in that protest. A refusal to permit individuals to travel with the goal of attending a meeting—which in the digital context could translate into blocking an individual’s access to the internet—amounts to an interference with the right to freedom of peaceful assembly. So do the measures taken during the protest, such as dispersal of the meeting, apprehension of participants, or other punishments inflicted upon protesters—the same measures can be equally applicable to participants and organizers of an online protest.
It has been increasingly common for states to shut down access to the internet and communication services during public protests, alternatively known as “blackouts” or “kill switches.” According to data collected by Access Now and the #KeepItOn coalition, one of the most commonly observed causes of internet shutdowns in 2019 was protests. Consequently, “when a government says it is cutting access to restore ‘public safety,’ in reality it could mean the government anticipates protests and may be attempting to disrupt people’s ability to organize and speak out, online or off.” When “a government claim that a shutdown is necessary to fight ‘fake news,’ hate speech, or incendiary content,” it “could be an attempt to hide its efforts to control the flow of information during periods of political instability or elections.” Indeed, internet shutdowns—the most frequent tool employed by governments to suppress online dissent and protest—is impermissible under international human rights law, even in times of conflict or other emergencies. As stated by four Special Rapporteurs on the field of freedom of expression respectively appointed by the U.N., the Organization for Security and Co-operation in Europe, the Organization of American States, and the African Commission on Human and Peoples’ Rights in a Joint Declaration on Freedom of Expression and responses to conflict situations, web content filtering and complete shutdown of communication systems “can never be justified under human rights law.” (¶ 4.c.). To substantiate this statement, it must be noted that whereas the rights to freedom of expression and freedom of assembly and association are not qualified as normatively absolute rights in the sense that they are subject of legally prescribed limitations, such limitations must be necessary and proportionate, and “must be narrowly interpreted.” (Kudrevičius v. Lithuania, ¶ 142). However, a complete internet shutdown is more analogous to a complete denial of the rights than a narrowly qualified limitation.
As the U.N. Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has explained, the right to freedom of peaceful assembly not only imposes a negative obligation on the state to not interfere with the enjoyment of the right; it also creates a positive obligations on public authorities to secure and facilitate the effective enjoyment of this right. States must therefore act in consonance with their international obligation to protect the right to freedom of peaceful assembly online by permitting protesters to peacefully gather online. In other words, states should ensure that access to the internet is not blocked, censored, restricted, or shut down entirely; that the privacy of those peacefully participating in an online assembly is respected; and that they face no actual or subsequent consequences for participation or organization of an online protest, such as arrest, detention, or imposition of penalties. The primary responsibility of states for the realization of the right of peaceful assembly also entails the responsibility to prevent non-state actors, including businesses, from unduly interfering with individuals’ freedom of peaceful assembly. According to Human Rights Council, states should “ensure effective remedies for human rights violations, including those related to the internet.”
Conclusion
Those who undertake to imagine the future of online protests or digital dissent on earth or in space can do so not only on the basis of their power of imagination but also knowing that the byproduct of that imagination is protected by law. As many tragic events in human history that have given rise to new legal and institutional inventions (to name a few, the United Nations, the Universal Declaration of Human Rights, and the Genocide Convention after Second World War), the Covid-19 pandemic and the subsequent governmental limitations on peaceful assembly have brought the right to protest into a new light. However, while the analysis here reveals the existence of legal foundations and safeguards of a right to protest online, including its composite principles, it nonetheless points to a demand for the development of a universally agreed framework and its enforcement. One out of many possible courses of action—at least as an initial step—could be the adoption by heads of state and government at the next U.N. General Assembly plenary of a joint declaration that affirms the right to protest online. In operational practice, courts are the obvious natural candidates to recognize and implement the right to protest online.
* Qerim Qerimi is a professor of international law, international law of human rights, and international organizations at the University of Prishtina. He is also a visiting professor and member of the Law and Development Research Group at the University of Antwerp Faculty of Law. Additionally, he is a member of Council of Europe’s European Commission for Democracy through Law (Venice Commission) and chair of its sub-commission on the protection of national minorities, and serves as Rapporteur for Oxford International Organizations (OXIO). He has pursued postdoctoral research at Harvard Law School on a Fulbright scholarship.
† See generally, Cass R. Sunstein, Why Societies Need Dissent (2005); Josiah Ober, Political Dissent in Democratic Athens: Intellectual Critics of Popular Rule (2001).