What is the trajectory of judicial discourse on digital rights in South Asia? Are the laws being used to protect people’s rights and freedoms or are they used to stifle self-expression and open discourse? A new report, Jurisprudence Shaping Digital Rights in South Asia, attempts to shed light on these questions.
The report was developed by the Association for Progressive Communications (APC) under the CYRILLA project. The report looked into a workbook of cases and decisions available at the CYRILLA database and analysed the content of the orders. Cases were divided into three categories: access, privacy and freedom of expression.
The aim of the report was to develop documentation that can be used by policy experts, digital rights defenders and lawyers to identify and compare jurisprudence on the issues discussed. Ultimately, it is hoped that this document enables advocacy for improvements in digital rights guarantees based on progressive judicial pronouncements in other jurisdictions and that collaborations are made possible. This report is not meant to exhaustively list cases relating to digital rights in the states studied. The objective is to make available a resource that showcases and analyses the judicial thinking in Bangladesh, India, Nepal, Pakistan and Sri Lanka on broad questions relating to digital rights and more specifically issues relating to access, privacy and freedom of expression.
South Asia was chosen as the region of focus for the report to illustrate how factors such as a diverse population and a mix of linguistic, ethnic and religious considerations play into shaping digital rights through the creation and application of laws and policies.
The report found that cases addressed issues such as whether privacy is protected as a fundamental right, whether state surveillance mechanisms are valid and if they are, how these are regulated, and concerns over national identity programmes. Meanwhile, the report highlighted that courts often rule in favour of censorship and criminalisation for cases concerning freedom of expression. There are cases presented that illustrate the use of blasphemy provisions to criminalise or stifle free speech as well as cases that used defamation laws and contempt of court to prevent people from speaking freely. There is also a cloud of uncertainty over how certain cases will be processed as a result of which people are compelled to take down the online content in question rather than endure a lengthy legal battle.
The trend that the report has uncovered is that “courts have been more deferential to state power and concerns of national security of public order over defending individual and fundamental freedom.” Courts often rule in favour of state actors even if the laws were applied to stifle people’s freedom of expression and free speech. On the other hand, South Asian courts have also produced important rulings over cases that questioned the imposition of state-mandated internet shutdowns, challenged legality of vague provisions, and called for the need for data protection mechanisms.
The report closes with a recommendation for courts in the region to adopt a rights-based approach to the cases brought before them. Further, attention should be paid to mitigating threats against state and non-state actors. Network shutdowns should also be regulated fairly – ensuring that when access to the internet is not possible for some reason, the people are left with alternatives to stay connected.
Read the full report here.