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Dictating the Internet:
IV. Patterns of abuse
While the laws and their implementation as outlined in this report
reflect particular legal systems and must be understood in their national
contexts, a number of important commonalities emerge, revealing a pattern of
abuse across the region. In many instances, the legal provisions themselves
are not human rights compliant, and these deficiencies are exacerbated
by the manner in which they have been implemented. Legal frameworks
have thus been abused systematically to curtail the exercise of the rights
to freedom of expression, opinion and information, and other human rights
and fundamental freedoms, online.
i. “National security” and “public order”
The first commonality is that the laws covered in this report often
conflate national security, public order and related themes with the perceived
interests of the government or other powerful actors. There is often further
conflation with protection against offence or insult to the reputation or dignity
of individual representatives of the State – including State officials, the head
of State or the monarch, or organs of the State, including the judiciary.
The laws and regulations are riddled with vague, imprecise language, in
contravention of the principle of legality. This leaves them open to arbitrary
application across a wide range of circumstances, with substantial discretion
given to officials with little accountability.
In many of the cases referenced in this report, individuals have been
detained, investigated, charged, prosecuted and/or convicted of offences,
even where a specific, narrow link between the act of online expression of an
individual and its “real, identifiable risk of significant harm” to a “legitimate
security interest” has not been shown,573 or where the information they
revealed online should be protected expression because they concern
matters of “public debate concerning public figures in the political domain
and public institutions”.574
It is clear from the classes of individuals and legal persons who have
been targeted that laws have been misused to control political and other
critical debate online in order to protect the interests of powerful individuals
or institutions. Those targeted with prosecution had all expressed or revealed
573 Tshwane Principle 3.
574 CCPR/C/GC/34, para 38.