A methodology for mapping the emerging legal landscapes for human rights in the digitally networked sphere Introduction: Why we need a methodology to identify laws affecting human rights in the online sphere Why study laws that restrict digital rights? By Jessica Dheere SMEX https://www.smex.org The methodology used to conduct the research for Unshackling Expression is based on a methodology developed by SMEX. This chapter provides an overview of the methodology’s development and use. For the purposes of our own research, the methodology, insofar as it related to the classification of laws into legal foundations, fundamental rights and freedoms, governance of online and networked spaces, sectoral laws and other laws, was especially helpful in defining the scope and limitations. In each country, these classifications were applied to understand the nature of laws affecting cyberspace, and more particularly, the laws criminalising online freedom of speech and expression. Thus, the entire concept of digital rights was not adapted for Unshackling Expression; we restricted our research to the right to freedom of opinion, speech and expression online, and more narrowly, to laws that criminalise this right. Towards this end, we adapted the legal classifications to identify the laws that affect freedom of speech online by way of criminalising such expression. There are, of course, many ways in which governments restrict digital rights, including the right to freedom of opinion, speech and expression. Laws are merely one tool. However, laws form the primary legitimising tool to restrict digital rights. As Article 19 of the International Covenant on Civil and Political Rights (ICCPR) makes clear, any restriction on the right to freedom of expression must be grounded in law, and this law must be both enacted and made available to the public. Laws that criminalise speech online form a sub-category of laws that restrict digital rights, and comprise the subject of this report, Unshackling Expression. Around the world, civic space is shrinking.1 This contraction is in large part the result of attempts by governments to assert their sovereignty and regulate the internet and other aspects of the digitally networked sphere through legal controls. In many cases these controls aim to deal with legitimate challenges, such as certifying e-transactions, the theft of personally identifiable information, and other forms of internet-enabled crime, but often they are drafted from an uninformed or myopic perspective of how law, and thus rights, translate to the digital realm. In other cases, these controls consist of outdated legislation, such as analogue-era press and publications laws, clumsily interpreted for the digital sphere. In most cases, because the development and application of law to the digital realm is frequently ad hoc, it can be difficult for online rights advocates to conceptualise these frameworks, identify their weaknesses, analyse emerging trends, qualify their impact and, most important, push for reform. In 2013, as the optimism of the so-called Arab Spring began to wane, governments in the Middle East and North Africa (MENA) reacted to the uprisings and revolutions by cutting off NGO funding, upping surveillance, and detaining and arresting activists and journalists under false pretences – frequently under cover of vague statutes and arbitrarily applied law. To gain a better understanding of this emerging minefield of red lines, SMEX launched two separate but concurrent inquiries into the emerging legal framework for online expression and press freedom. The first, a pilot research initiative conceived 1 Bustos, C. (2017, 17 April). The Shrinking of Civic Spaces: What is Happening and What Can We Do? Dejusticia. https:// www.dejusticia.org/en/the-shrinking-of-civic-spaces-what-ishappening-and-what-can-we-do 6 / Unshackling Expression