We are in the full swing of an electoral campaign and one of the most important elements in such a situation is the freedom and ability to impart and receive information on the issues arising in the course of the campaign. In any electoral campaign an outgoing government will automatically be criticized not only on the policies it pursued, the decisions it took but also on the behaviour of its members.

Over the past weeks leaks which have been labelled as the Moustache Leaks have laid bare conversations between allegedly high placed people in the sphere of government, including top politicians, on very sensitive matters. These matters range from alleged cover up in homicide cases, drug trafficking, interference with the powers of the police in matters of investigation, interference with the lower judiciary. If these facts are proved to be true they are very serious and constitute a blatant breach of the rule of law and constitutional principles. The latest leaks concern an alleged conversation between the prime minister and another person.

Following a threat to release these conversations, the Information, Communications and Technologies Authority (ICTA) took the singularly arbitrary decision to block the internet and the social media on Friday last. This came as a shock to the citizens and to the business sector that relies on the internet to carry out business. There has been outcry and a lot of complaints and criticisms on this decision both at national and international level. No reason was given by ICTA for such an unprecedented and drastic decision. Blocking the internet may be justifiable in some circumstances but reasons must be given for such a decision so that the aggrieved individual may seek remedy, administrative or legal. The prime minister has at the end of Friday made a public statement that this measure had to be taken in the national interest and security of the State as the phone in his office had suffered a cyber-attack or interference. Whether this can be verified remains to be seen.

In Mauritius, as in many countries, internet has become the vehicle for receiving and imparting information and for accessing information of a varied nature. It is protected by the right of freedom of expression as embodied in the Constitution. As with all fundamental rights there may be derogations from the right of freedom of expression provided the derogations are justifiable in a democratic society. Under the ICTA, the Information and Communication Technologies Authority (ICTA) has, among other powers, the power to take steps to regulate or curtail the harmful and illegal contents on the internet and other information and communication services.

The Constitution contains several instances that would justify derogations by curtailing freedom of expression, like defence, public safety, public order, public morality or public health; reputations, rights or freedoms of other persons or the private lives. The derogations must not be excessive or out of proportion with the object which it is sought to achieve. In regard to the freedom of the press it has been held that precensorship of a newspaper is an onerous restriction on the liberty of the press not lightly to be countenanced in a free society. The same principle would apply to social media.

In a case decided in 2015 by the European Court of Human Rights (ECHR), the Court stated: “Internet has now become one of the principal means by which individuals exercise their right to freedom to receive and impart information and ideas, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest. Moreover, as to the importance of Internet sites in the exercise of freedom of expression, ‘in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general’. User-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression…”

In many cases decided on the blocking access to internet websites like Google or YouTube, the ECHR has analysed the blocking in relation to the freedom to receive and impart information, a fundamental right protected by article 10 of the European Convention on Human Rights. The ECHR has ruled that comments on matters of general interest or political issues generally enjoy a high level of protection of freedom of expression.

The ECHR has gone as far as ruling that Article 10 of the European Convention of Human Rights leaves little room for restrictions on freedom of expression in political speech or matters of public interest. “Whilst an individual taking part in a public debate on a matter of general concern is required not to overstep certain limits as regards – in particular – respect for the rights of others, he or she is allowed to have recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements.” The ECHR has also ruled that criticism or satire, covers “information” or “ideas” that offend, shock or disturb the State or any section of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. Irreverent satire certainly enjoys the protection of the Convention.

Section 12 of our Constitution is couched on almost identical terms as article 10 of the European Convention on Human Rights. The ECHR has already expressed its thoughts on the blocking of social media and there is no doubt that the same rules should be followed here.

One political party has applied for an injunction for the ICT to come and explain the justification for blocking the internet. Any political party or any citizen should have locus standi to file an action before the Supreme Court. Locus standi is a Latin term. Courts have explained that it refers to the legal standing or the right to bring a particular lawsuit or legal action. It is a concept in law that determines whether a person has sufficient interest in a case to justify bringing it to court. To have locus standi, a party typically needs to demonstrate that they have suffered a specific injury, harm, or have a direct interest in the matter at hand.

Given the difficulty that litigants were experiencing to get redress on account of locus standi, the Indian Supreme Court devised a mechanism known as Public Interest Litigation. It refers to a legal mechanism wherein any citizen or social organization can move the court for the enforcement of the rights of any person or group of persons, more particularly where fundamental rights are involved. In Mauritius in a few cases the Supreme Court has rejected cases where citizens sought to challenge decisions involving matters of State for lack of locus standi.

Blocking the internet behind closed doors is a real affront to freedom of expression. How the security of the State was likely to be compromised following criticisms of the present regime has not been clearly explained.