Greater rights protection needed for online protesters

Protest is an essential tenet of free speech. It is a way of holding those in power to account. It makes politicians hear citizens’ voices at times when we don’t have a ballot paper in hand. It lets us tell corporations that their actions are not up to scratch.

In Australia, we have the right to protest. While it may not necessarily be articulated legally as so, there are common law and constitutional rights, as outlined below, that theoretically safeguard its existence.

The advent of the internet is changing the nature of protest, though, and rights protections in Australia and throughout much of the world are not keeping pace with that change.

Where once civil rights protesters took to the streets and marched, people now gather online to try to create change. In Australia and globally, people are utilising denial of service attacks, website defacements, virtual sit-ins, site parodies, web petitions, and the theft of information for publication or other political use to hold corporations, businesses and governments to account. People can participate more cheaply and easily, and from the comfort of their own home.

Because these are online, participants are not offered the rights protections they would receive had they protested in person instead. Current Australian common law protections of the rights to communicate and assemble freely are insufficient when transferred to the online space.

Firstly, the principle of legality is unreliable as a defence. It is applied on a case-by-case basis. This means that a protester relying on this to protect them from conviction may discover that it cannot.

It is also limited. While it does require legislation be construed to minimise or avoid the encroachment of rights, it offers no such safeguard when Parliament expressly provides that it wishes that particular piece of legislation to overrule rights. When passing legislation designed to increase online security or allow for data collection, an express wish to ignore rights would not be surprising.

Secondly, the common law right to freedom of assembly is insufficient in its rights protections. The requirements for an assembly to be legal are geared towards offline protests. Protesters must give notice of their intent to hold a public assembly, for instance, which requires them to give its physical location and the period of time in which it will occur.

Online sit-ins is the most comparable online counterpart. Rather than gathering in a public place to protest, citizens access a specified site, seeking to slow or shut the site down in order to protest its, or its publishers’, content. The above legal requirements of registration of a public assembly do not easily translate to an online sit-in, which does not have a physical location or an anticipated duration. The common law protection that compliance with these requirements confer cannot therefore be relied upon to safeguard the rights on participants in online sit-ins.

Finally, even the constitutionally implied right of freedom of political communication is not substantial enough to provide rigorous rights protection when applied to online activity. To start, the High Court of Australia clarified in Lange v ABC that it only applied to ‘matters relating to the politics of government.’ This obviously rules out protests against corporations or other organisations, which are common targets of online protest.

There are also general issues with relying on a constitutional protection. A relevant matter must come before the High Court with the right set of facts, sufficient funding, and between parties that have refused to settle or take a deal in earlier proceedings. Online protests largely consist of individuals gathering online who then decide on a course of action. They do not stem from professional advocacy groups that have legal budgets. As such, many online protesters simply don’t have the resources take such a course of action.

The case of Aaron Swartz, activist and a creator of Reddit, illustrates how serious the need for rights protections for online protesters is. In 2011, Swartz was arrested and later prosecuted in America for wire fraud and violations of the Computer Fraud and Abuse Act (1986), which carried hefty penalties including an accumulative $1 million in fines and 35 years in prison.

His crime? He had tapped into the Massachusetts Institute of Technology network in order to download and then distribute for free JSTOR articles. He was protesting the fact that Americans have to pay to read publicly funded and publicly important academia. He committed suicide while under federal indictment.

Had sufficient legal protections for online protesters existed, Swartz may have been safeguarded from being prosecuted for his activism. He could have made a valid point about the commercialisation of knowledge, as was his intent, without facing 35 years in prison.

Both Australia and the global community need to act to ensure there are no more cases like his.

There is international consensus that rights associated with protesting online must be protected. In 2005, for instance, the Committee of Ministers of the Council of Europe recognised that ‘freedom of expression, information and community’ should be protected online as it is offline.

Furthermore, the Charter of Human Rights and Principles for the Internet (2011), developed by respected non-governmental international organization, the Internet Rights and Principles Coalition, provides that the right to freedom of expression extends to protecting online protesters, declaring that ‘everyone has the right to use the Internet to organise and engage in…online protest.’

Australia needs to enact similar protections in its own laws. Our current protections are clearly insufficient. To safeguard our ability to fully participate in the public sphere, the law needs to catch up and protect these rights. If we do not, we, as citizens, risk losing our ability to have our voices heard in the internet age.

The author, Hannah Wootton, was the Human Rights Defender Student Editor for semester two, 2017. Read other articles from The Student Voice.


Photo of Aaron Schwartz, with thanks to, Fair Use Act.