Emergency Derogation or Curtailment of Human Rights?
A Critical Analysis of Iran’s Internet Shutdowns
Following the killing of Mahsa (Jina) Amini in the so-called “Morality Police” custody due to the alleged non-compliance with Iran’s hijab regulation, mass protests erupted all over the country in September 2022. As one of its suppressive reactions against these protests, the Iranian government has restricted access to the Internet on a large scale. Discussing such restrictions is of high importance, since: first, Iranian authorities used and continue to use Internet shutdowns as a repressive measure to quell protests. Second, the Human Rights Council (HRC) has recently established a Fact-Finding Mission for Iran with the mandate to “investigate alleged human rights violations in the Islamic Republic of Iran related to the protests that began on 16 September 2022.” The internet shutdowns can however significantly hamper the investigation process because Iranian authorities refuse to cooperate with the Mission, leaving witnesses and civil organizations only one option to communicate with the Mission: the Internet.
Against this background, this blog post aims to analyse Iran’s practice of restricting access to the Internet during unrest based on the national security justification.
The antagonism of Iran’s regime towards the internet is not an emerging strategy in response to the current wave of protests. In November 2019, following the protests over the sudden surge in gas prices, the government shut down the internet for five days. Amnesty International reported the deadly suppression of protests with widespread arrests during the shutdown. This internet shutdown was precedented by limiting Internet access by filtering Twitter and Facebook since June 2009 – following the protests over the controversial presidential election – and Telegram since January 2018. Although these limitations were reactions to specific events, they have since remained in effect. During the current protests, Instagram and WhatsApp were filtered as well. The government explicitly targets social media and platforms that are assumed to play a role in the organisation of protests and the spread of information. The proposed “Cyberspace Users Rights Protection and Regulation of Key Online Services” (Protection Bill) could aggravate the situation further. The Bill aims to limit access to non-Iranian online platforms and imposes tighter measures for the control of users’ online activities. Once approved, the Bill would place the decision on access to the Internet under the authority of a working group consisting of military and intelligence agencies.
The Human Rights Impact of Internet Shutdowns
The Office of the United Nations High Commissioner for Human Rights (OHCHR) has released a report titled Internet shutdowns: trends, causes, legal implications and impacts on a range of human rights in May 2022. The report defines Internet shutdowns as “measures taken by a government, or on behalf of a government, to intentionally disrupt access to, and the use of, information and communications systems online” (para. 4). In general, states have the positive obligation to provide meaningful access to the Internet to everyone (para. 8). A fortiori, states should refrain from interfering with access to the Internet “unless such interference is in full compliance with the requirements of the applicable human rights instruments” (para. 8). Internet shutdowns, however, undermine the exercise of various human rights, most notably the freedom of expression and information (para. 9). In the context of protests Internet shutdowns also interfere with the right to freedom of assembly and association (para. 25). Both rights can only be restricted if stringent requirements are met. As Iran ratified the International Covenant on Civil and Political Rights (ICCPR) in 1975 the Government is bound to respect, fulfil and protect the rights enshrined in this Covenant. While Iran can derogate from its obligations under the ICCPR in time of emergency (Article 4), Internet shutdowns should not be misused to quell protests (para. 25). The following part will elaborate on the question of whether Iran unlawfully interferes with the rights of its people.
Justified State of Emergency or Unlawful Limitation?
Iranian authorities continuously frame peaceful protests as a threat to national security by calling them riots evoked by enemies in multiple statements. By doing so they give “free rein” to security forces to suppress the protests through excessive use of force. These suppressive measures have been coupled with the government’s propaganda in the media and partial Internet shutdowns and social media filtering. Despite the initial denial of government-imposed Internet limitations, the Minister of Interior claimed it is “natural” for the government to impose such limitations, to control the dissemination of information and “propaganda by the enemy aiming to lead the riots”. On 19 October 2022, the Minister of Information and Communication Technology stated that the usage of proxy servers would be criminalised. Additionally, the Intercept has revealed in a recent report how the Iranian government tracks cell phone users and monitors their communication. The government justifies its actions by using the pretext of “national emergency”. This raises questions about the requirements for announcing a state of emergency and the legal basis for imposing limitations on the right to access the Internet.
As Article 4 ICCPR asserts, merely arguing about an emergency would not allow states to derogate from their obligations under the Covenant. According to General Comment No. 29, two conditions must be met for a situation to qualify as a public emergency: “ the situation must amount to a public emergency which threatens the life of the nation, and  the state party must have officially proclaimed a state of emergency”. The Islamic Republic of Iran Constitution, provides a similar basis for imposing limitations on the rights and freedoms of its citizens and has conditioned any limitation on the basis of law. Article 79 of the Constitution states: “[i]n case of war or emergency conditions akin to war, the government has the right to temporarily impose certain necessary restrictions, with the agreement of the Islamic Consultative Assembly.” Hence, the Constitution introduces the scope, procedure, competent authority and time frame of the state of emergency. Any limitation on Internet access must be examined against the three principles of legality, legitimacy, and proportionality. We will follow the regular order of the three principles in reverse since we want to discuss it from the least clear one to the clearest in the case of Iran.
According to General Comment No. 34 (para. 34), restrictions on the freedom of expression, including Internet shutdowns, are considered proportionate if the “least intrusive method to accomplish a legitimate aim” is used. Generally, it can be argued that Internet blackouts as response to protests under the guise of national security cannot be classified as a proportional measure. This assumption is based on two facts: first, Internet shutdowns, even the partial and platform-related ones, affect everyone and not only those who are the direct target of the shutdown, here the protesters. So, imposing it is not proportionate to the targeted people as the subjects of this limitation. In addition, the objects of this limitation – human rights – are also impacted by this limitation. The Internet is not only a powerful tool for the exercise of freedom of expression, but it is also an essential means for the exercise of other political, civil, economic, social, and cultural rights (para. 14). In conclusion, Internet restrictions affect a number of other human rights, which are irrelevant to the apparent cause of these limitations. Therefore, the Internet limitations in the case of Iran are not narrowly tailored to their aim, even if we consider the aim as “legitimate”.
Three aspects should be considered in state officials’ claim about the justifiability of their decision to restrict Internet access to safeguard “public interests” in an emergency. First, public interest per se is a very vague concept. Governments often understand themselves as the interpreter of public interest. Instead, public interest should be however seen as the common good of all community members. Second, in a democratic society, preserving democratic values is a core element of public interest. Like many other governors worldwide, Iranian authorities legitimise Internet shutdowns by defining the protests as a threat to national security and public interest. However, scholars believe that protests illustrate one of the central principles “to the history and identity of the liberal, democratic nations-states” (Wood, p. 126), since they assure the inclusivity of voices. Therefore, shutting down the Internet to prevent communication among protestors and the relevant restrictions on peaceful protests contradicts democratic values. Third, the duration of emergency decisions affects the legitimacy element. As previously mentioned, the Iranian government authorities neither limit these decisions to the – alleged – emergency nor mention any specific timeframe for them.
General Comment No. 29 mentions that the proclamation and the scope of decisions about emergencies should be in line with states’ constitutions and relevant legal provisions to guarantee the decisions’ legality. According to the UN Human Rights Committee comments and concluding remarks, particularly on behalf of the United Republic of Tanzania and Bolivia, states should have precise regulations related to the state of emergency. Chapter 3 of the Iranian Constitution conditions any limitation on the people’s rights to the provision of law ratified by the parliament. The negotiations during the constitution enactment confirm the necessity of an ex-ante approval by the Parliament. The decision and statement on behalf of the Minister of Interior are unlawful since he does not have the authority to limit the right to access the Internet without any legal basis. Neither the Constitution nor the “Law on the Responsibilities and Structure of the Supreme National Security Council” has recognised such an authority for the Minister of Interior. Therefore, the element of legality is not fulfilled either.
This blogpost illustrated that the Internet shutdowns in Iran are neither legal, legitimate nor proportionate. In other words, Iran’s authorities cannot invoke emergency decisions to justify the Internet shutdowns. Shedding light on this illegal practice is more important than ever, due to its potential impacts on the investigations of the Fact-Finding Mission. As mentioned earlier, severe restrictions on the access to Internet are imposed while the draconian Protection Bill is discussed. Regrettably, the government – once again – overrides the human rights of its people which are vital for a democratic society.