[María José Escobar is a law graduate of the University of Bucharest.]
At this point in time, it is not controversial to state that the COVID-19 pandemic has challenged what the world took for granted regarding the exercise of our most fundamental freedoms. Not only did States adopt strict and unusual restrictions on mobility and expression, but we also witnessed how these rights had their boundaries tested as reality shifted to an online forum.
As correct as this affirmation is regarding freedom of assembly, it is also clear that social media is not a mere instrument that can be used to facilitate the organization of physical gatherings, but rather a tool that also allows us to congregate in ways that were simply not possible 30 years ago. Consequently, the question must be raised: is the current legal framework prepared to safeguard the digital exercise of this right?
Freedom of assembly and online protests: a general sketch
The right of peaceful assembly is protected by numerous international and regional instruments including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and the European Convention on Human Rights.
In July 2020 the Human Rights Committee adopted General Comment No. 37 on the right of peaceful assembly. The document defined freedom of assembly as the right to “organize or take part in a gathering of persons for a purpose such as expressing oneself, conveying a position on a particular issue or exchanging ideas.” General Comment No. 37 was praised by activists partially because it unequivocally asserted that the protection granted to freedom of assembly extends to peaceful gatherings held and organized within an online forum.
For sure, online forms of exercising freedom of assembly, including those seeking to enable civic engagement, precede the General Comment. Movements such as the Arab Spring had long before discovered the effectiveness of social media, more concretely Facebook groups, as a tool for facilitating and encouraging mobilization.
However, recent events have proved that activists may feel tempted to choose less traditional forms of virtual gatherings and protests. For instance, in Russia, people decided to rally in Yandex.Maps – the Russian version of google maps – to complain about a constitutional reform that would allow President Putin to stay in power until 2036. An additional and more popular example could be the 28 million Instagram users who used the #BlackOutTuesday hashtag to upload pictures of black squares as a symbol of protest against police brutality in the United States.
These novel forms of collective expression may help illustrate the premise that the dynamics of freedom of assembly can fundamentally differ when they take place in an online forum. For instance, the fact that online protests are not limited in space, and sometimes in time, makes the phenomenon difficult to delimit. Notably, it had been argued, before General Comment No. 37 was issued, that a gathering must be temporary to be considered an assembly (Nowak, 2005, p. 484). Other authors considered “bodily proximity” as one of the key dimensions of both assemblies and demonstrations (Butler, 2015, p. 178).
Given these discussions, concerns had been raised regarding the general applicability of rules dealing with freedom of assembly to every form of online gathering. These concerns mostly focus on how key elements related to this right, such as its relationship with freedom of expression and the permissibility of certain restrictions, will play out in the virtual arena. Consequently, it was suggested to give priority to freedom of expression, and not freedom of assembly, when analyzing certain forms of digitally collective expression (see here, here, and here for a more profound analysis on the discussion).
General Comment No. 37 settled these debates and specifically asserted that article 21 of the ICCPR protects online assemblies. Still, the highly authoritative character of this clarification is not immune to unanswered questions. How can we establish participation when a gathering takes place in an online forum? Can shutting down a hashtag be considered a restriction to freedom of assembly? Is it possible to determine when a virtual assembly starts and ends?
Limitations specific to online forums
The characteristics proper to virtual assemblies demand a closer look at the validity of certain limitations to the right of peaceful assembly which have traditionally been accepted as legitimate. Typically, any peaceful, non-violent gathering falls under the protection granted by freedom of assembly. As such, restrictions on these types of assemblies can only be imposed if they pursue certain legitimate aims and comply with the standards of legality, necessity, and proportionality.
In this regard, it remains unclear if and how virtual demonstrations can become violent as, according to General Comment No. 37, violence implies “the use by participants of physical force against others that is likely to result in injury or death, or serious damage to property.” This distinction is relevant because only peaceful gatherings benefit from protection. Incidentally, a Recommendation of the Committee of Ministers from the Council of Europe warned that even if individuals do have the right to protest online if the virtual protest “leads to blockages, the disruption of services and/or damage to the property of others” legal consequences might be in order.
On a similar note, it is important to clarify that, ordinarily, individual acts of violence are not enough for an assembly to be characterized as violent. For an assembly to fall outside of the protection granted by freedom of assembly, General Comment No. 37 asserts that violence must be “widespread and serious.” On the other hand, the European Court of Human Rights has ruled that for a gathering not to be considered peaceful, “organizers and participants must have had violent intentions, incite violence or otherwise reject the foundations of a democratic society.” It is worth noting that until this day, to the best of my knowledge, there has yet to be an online demonstration characterized as violent.
Similarly, when dealing with permitted restrictions to freedom of assembly, the protection awarded to this right assures that a peaceful protest must be able to reach its targeted audience. Given the amplifying effect of the internet, any restriction targeting the virtuality or virality of a protest would severely impede the targeted audience- i.e an indefinite group of internet or social media users- to witness the campaign. This brings up the question: is there any room for “time and place restrictions” when analyzing online gatherings?
Nevertheless, something is certain as far as restrictions are concerned: indiscriminate internet blockages, used to censor speech or crackdown on gatherings or protests, have been clearly considered disproportionate. The Special Rapporteur on freedom of assembly has even asserted in paragraph 52 of a report on the rights to peaceful assembly and association that “network shutdowns are in clear violation of international law and cannot be justified in any circumstances.” This standard is particularly relevant, as the practice seems to have become more and more common, even among well-established democracies.
The right to freedom of assembly has been described as an “essential component of democratic governance.” This remains true in a virtually connected world: the right to collective expression is still one of the pillars which help a tolerant and broad-minded society to thrive. Whether they spread calls for social action, become a space to share common interests, or even a stage for civic protest, online forums must be protected as means to both enable and exercise freedom of expression and assembly. Social media and similar tools have value to human rights because of, and not despite, the new features and challenges they bring to the table.
Views expressed in this article are the author’s own and are not representative of the official views of Jus Cogens Blog or any other institute or organization that the author may be affiliated with.