In the past decades internet has changed people’s way of life. Not only has it altered the dynamics of travel, education and retail but also has redefined life in remote locations. A thriving telecommunication and electronics industry along with the government’s endeavour to make a “Digital India”, has made internet accessible and affordable for all. As in June 2017, the number of internet users in India was around 450-465 million.
In formal terms, the Internet is a global system of interconnected computer networks that use the Internet protocol suite (Transmission Control Protocol/ Internet Protocol). Realizing its immense utility and pervasiveness the United Nations (“UN”) in 2016, passed a resolution making access to the internet a human right. The Constitution of India (“the Indian Constitution”) also provides this right by means of Article 19, which guarantees freedom of speech and expression. The state of Kerala has also declared internet access as a basic right for every citizen just like food, education and water. However, this right is not absolute and can be restricted under national as well as international law.
In the various instances where the Indian government has restricted this right, it has failed to follow the legally permissible grounds and procedures. Such disruptions, making information inaccessible and unusable on the internet are often referred to as ‘internet shutdowns’. While shutdowns are frequently associated with total network outages, they may also arise when access to mobile communications, websites or social media and messaging applications is blocked, throttled or rendered effectively unusable. State governments have imposed 65 internet shutdowns so far in 2017. The numbers have steadily risen, from 2 in 2012 to 31 in 2016 covering across 14 states. Attempts to justify censorship often appeal to the protection of public order, public morals, tackling hate speech, or promoting national security. In the opinion of the author, such orders of the government violate the freedom of speech and expression of the people which is primarily provided in Article 19 of the Indian Constitution and various other international instruments to which India is a party.
Examining these aspects of access to internet, Part-I of the essay lays down the legal framework under which the right to access internet has been guaranteed under international law and the Indian Constitution. Part-II analyzes the various restrictions imposed on this right, both in terms of substance and procedure, against the national and international legal framework. Part –III points out the loopholes present in the law and briefly suggest the improvements which should be undertaken in order to ensure the full enjoyment of this right.
Right to Access Internet as a Human Right: Understanding from International Law Perspective
The International Covenant on Civil and Political Rights (“ICCPR, 1966”) and Universal Declaration of Human Rights (“UDHR, 1948”) recognize freedom of expression, the free flow of information, and pluralism of the media as a human right. Article 19, in both the UDHR and the ICCPR, makes this commitment. It covers all possible modes of dissemination by giving an individual the right to seek, receive and impart information through “any other media of his choice.” Various means of expression such as “books, newspapers, pamphlets, posters, banners, dress and legal submissions” as well as “all forms of audio-visual as well as electronic and internet-based modes of expression” are protected under article 19. It enables an individual to effectively exercise other rights.The realm of right to access internet requires that the States ensure minimum level of access to the technologies of connection, pay particular attention to the needs of vulnerable populations and provide access to specific technologies when no adequate alternative means are available.
Access to the Internet consists of two dimensions: access to content (without the arbitrary and unwarranted filtering or blocking of content) and access to the infrastructure and equipment required to use the internet. States must facilitate and promote free access to internet both amongst public and private entities, develop adequate infrastructure to support such access and take positive measures to ensure internet access for weaker sections of society. The UN resolution on the promotion, protection and enjoyment of human rights on the Internet, unequivocally condemns measures to “intentionally prevent or disrupt access to or dissemination of information online.” In 2015, major UN and international rights experts, issued a historic statement declaring that internet “kill switches” can never be justified even in times of conflict. Various resolutions of Human Rights Council and General Assembly have also acknowledged that the freedom of expression is applicable online.
Right to Access Internet as a Fundamental Right: An Indian Perspective
Right to free expression is provided under Article 19(1)(a) of the Indian Constitution. The judiciary expanded the scope of this right and gave it a wider meaning in the case of Secretary, Ministry of I& B v. Cricket Assn. of Bengal:
“Freedom of speech and expression includes right to acquire information and to disseminate it….. The right to communicate, therefore, includes right to communicate through any media that is available, whether print or electronic or audio visual such as an advertisement, movie, article, speech etc.”
Article 19(1)(a) guarantees not only the rights of speakers to express themselves, but also the rights of listeners (or, in the case of the internet, viewers) to access information (other constitutions – such as the German and the South African – expressly include listeners’ rights as an aspect of the freedom of expression). The Supreme Court in Sabu Mathew George v. Union of India (UOI) and Ors. made the following observation:
“We may further add that freedom of expression included right to be informed and right to know and feeling of protection of expansive connectivity.”
In the landmark judgment of Shreya Singhal v. Union of India, the Supreme Court upheld the free expression rights of Indian citizens online. However in the same case, the substantial and procedural law for blocking websites was considered legitimate as it did not appear to violate fundamental rights.
(No right is absolute): Restrictions on Right to Access Internet
Territorial sovereignty is the right of a State to exercise authority over its own territory which includes cyber infrastructure and cyber activities falling within its boundaries. State practice gives sufficient evidence that cyberspace, or components thereof, is not immune from sovereignty and from the exercise of jurisdiction. Any restriction on freedom of expression must meet the three-part test under international human rights law i.e. (i) it is provided for by law, (ii) it serves to protect rights or reputations of others, or national security, or public order, or public health or morals and (iii) it is necessary to protect that interest. Once a violation of freedom of expression is established, the States should demonstrate that the restriction meets each of the three conditions found in Article 19 (3): legality, legitimate objective, necessity and proportionality.
Well defined laws must provide grounds for restrictions and a direct and immediate connection must exist between the expression sought to be curtailed and the alleged threat. Use of ambiguous terms in legislations makes it difficult for the general public as well as the private sector players to understand and comply with the laws, and gives room for the government to exercise unfettered discretion. Necessity requires that shutdowns should achieve their stated purpose, which is avoided by using imprecise language in substantive laws and non-transparent procedures. Governments frequently impose shutdowns during demonstrations, elections and other events of extraordinary public interest, with little or no explanation. Shutdowns are not commensurate with individual’s rights and are used to eliminate every remote situation which may be adverse to the government’s interests.
Item 31 in the List-I of the Indian Constitution provides that the Union government should provide for various forms of communication including wireless communication. Restrictions on internet access can be imposed under any of the eight grounds enumerated in Article 19(2) of the Indian Constitution namely–(i) sovereignty and integrity, (ii) security, (iii) friendly relations with other countries, (iv) public order, (v) decency, (vi) morality, (vii) contempt of court, (vii) defamation, and (viii) incitement to an offence. A website blocking regime exists under Section 69A of the Information Technology Act, 2000 (“IT Act“), exclusively to the Central Government. Such blocking can only be resorted to where it is necessary, relatable to any subjects set out in Article 19(2) and is based on reasons recorded in writing.
Internet shutdowns have been frequently administered by the State Governments under inappropriate laws and without any procedural safeguards. The government has often resorted to Section 144 of the Criminal Procedure Code, 1973 (“CrPC“), a provision mostly used to curb unlawful assemblies, to block access to internet. However the Gujarat High Court in the case of Guarav Sureshbhai Vyas v. State of Gujarat has upheld its application for such purposes. Shutdowns have also been ordered in states under Section 5(2) of the Telegraph Act, 1885 (“Telegraph Act“), which was enacted in the aftermath of the mutiny to cement the Crown’s authority over telegraphs in India.
A set of tests have been formulated and interpreted by the Supreme Court of India and international human rights bodies to prevent the unlawful restriction of right to access internet qua freedom of speech and expression. The legitimacy of the aforementioned provisions and their use, within national and international legal contours has been examined below.
Taking note of the fact that the parties’ contentions were veering around “public order” the Court in Shreya Singhal v. Union of India observed:
“Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc.“
Freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. The expression needs to qualify as ‘incitement’ causing imminent threat, for it to be curtailed.
An increasingly routine shutdown of the internet has been ordered in response to any kind of unrest, protest, or any political event. In fact, most communication in any public order situation revolves around safety and emergency, with small pockets of incitement.
Direct and Proximate Nexus
There must be proximity between speech sought to be curtailed and the threatened disorder. The threat must not be quandary, imaginary or a mere likely possibility, but a real threat to public peace and tranquility. In Ram Manohar Lohia v. State of Bihar, the Court conceptualized three concentric circles: “law and order” being the widest, “public order” being narrower, and “security of the State” being the narrowest. Thus, a disruption of public order is of more gravity than merely breaking a law, or disrupting “law and order”.
The government has used far-fetched and remote reasons such as local elections, national exams, rumour-mongering  and even the nation’s Prime Minister’s visit to justify the internet shutdowns. There is a clear absence of direct link between the cause of restriction and the possible harmful effect which the government seeks to forestall.
Vagueness and Overbreadth
Doctrines of vagueness and overbreadth are two concepts of American jurisprudence and are often used by the courts in India. Vagueness doctrine requires legal regulations to be drafted in a manner so that reasonable persons may be able to distinguish lawful from unlawful conduct. Courts invalidate laws that on one hand advance legitimate state interests, but on the other hand prohibit or inhibit significant portions of protected speech under overbreadth doctrine. Both these doctrines are closely related and require legislations to be crisp and clear for easy comprehension of general public.
In Kartar Singh v. State of Punjab, the Supreme Court observed that “it is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined.” Vague statutes suffer from two problems. One is a rule-of-law problem: citizens do not have a fair chance to plan their affairs. The second is a delegation problem: the executive is given far too much discretion to implement vague laws on the ground.
The Apex Court in Chintaman Rao v. State Madhya Pradesh while describing the principle of overbreath stated that “the language employed in the statute is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right.”
Section 66A of the IT Act which employed obscure terms such as “obstruction”, “danger” and “annoyance” was struck down by the Supreme Court, but under the garb of same terms, state governments often justify themselves for disrupting access under Section 144 of CrPC.
Chilling effect is the consequence of the vague and overbroad laws. Such laws patently seem to protect larger public interest but result in conviction innocent individuals. Any breach is to be met with burdensome sanctions and compliance of complex legal procedures. As a result, individuals and businesses are likely to err on the side of caution in order to avoid onerous penalties, filtering content of uncertain legal status and engaging in other modes of censorship and self-censorship. Such watchful behavior is often termed as “chilling effect”.
For instance under the offence of sedition a person can be punished with life imprisonment or imprisonment extending up to 3 years along with fine. A host of other laws relating to free speech such criminal defamation, hurting religious sentiments, contempt of court etc. impose heavy punishments and have chilling effect on people’s conduct. While speaking to Human Rights Watch group P Thirumavelan, who has several criminal defamation cases pending against him said “The intention of the government is only to create a fear psychosis among journalists and newspapers.”
The internet and telecommunication bans have the character of collective punishment. Unnecessary restrictions on free speech and expression tend to curb even harmless and permissible communications between innocent individuals.
The duration and ambit of any restriction on the fundamental rights must be as much as is required to prevent potential threat. In State of Madras v. V.G. Row, the Supreme Court held that a “reasonable restriction” under Articles 19(2) to (6) would have to satisfy the requirements of proportionality. Restrictive measures must be least intrusive and proportionate to the interest which is to be protected. Proportionality must be respected not only in the word of law but also in its application. A balance must be maintained between the restriction imposed and the aim which is purported to be achieved by such restriction.
While making prohibitory orders under CrPC or the Telegraph Act, the State Governments ignore the option of making a request to the nodal officer designated by the Central Government under Section 69A. Slightest disorders are controlled in the wake of protecting public order, tackling hate speech, promoting national security etc. Judiciary has also vindicated such restrictions.
Principles of natural justice need to be followed to ensure transparency. Reasons for blocking access and adequate opportunity of hearing must be given to the concerned parties. The procedural scheme for blocking access to internet is laid down under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“Blocking Rules”) and Rule 419A of the Telegraph Rules, 1951 respectively. The procedure outlined by these rules is nearly-identical.
The Court in Shreya Singhal v. Union of India observed:
“The Rules further provide for a hearing before the Committee set up – which Committee then looks into whether or not it is necessary to block such information. It is only when the Committee finds that there is such a necessity that a blocking order is made.”
The Court also conferred a right of pre-decisional hearing on both the originator of the online content and the intermediary providing internet services, before such blocking order is passed.
While the rules indicate that a hearing is given to the originator of the content, this safeguard is not evidenced in practice. Not even a single instance exists on record for such a hearing. This lack of information is compounded by the rules themselves attaching confidentiality to any complaints and actions taken by the government to block websites subsequently.
The special characteristics of internet’s pervasiveness, speed and privacy, on the one hand immensely benefits people but on the other hand they also create possibilities of abuse. New technologies have facilitated large volumes of communication and exchange. Lack of filters for this communication enables far more harmful expression than was possible at the time of the ICCPR’s drafting. The language of both the Indian Constitution and the relevant international law instruments indicate the drafters’ intention to accommodate new communication technologies. The likelihood of a right being subject to misuse should not be controlled by restricting the right but rather by putting effective legal machinery in place.
Social media in India has at times fuelled rumours leading to violence across the country. To prevent misuse of internet and online communication platforms, internet shutdowns are sometimes necessary. The author here does not argue against the practice of blocking access per se but the use of blocking regime as a default remedy by the government for minutest apprehensions. A delicate balance needs to be maintained between the rights of people to access internet and express themselves and the need to control content and access for preserving larger public good.
The restrictions provided under the law are too broad and non-transparent, and in some cases are so redundant that they fail to meet the purpose for which they are applied. In 2012, a government-appointed group of experts said the Telegraph and the IT Acts are inconsistent with regard to “permitted grounds,” “type of interception,” “granularity of information that can be intercepted,” the degree of assistance from service providers, and the “destruction and retention” of intercepted material.” These differences, it concluded, “have created an unclear regulatory regime that is not transparent, prone to misuse, and that does not provide remedy for aggrieved individuals.” In a report, the UN Special Rapporteur condemned the use of antiquated laws such as Telegraph Act to initiate shutdowns.
A wide variety of internet related services including connectivity, hardware, software, exchange etc. are provided by businesses which are mostly global, and are privately owned and managed. The keys terms in the license agreements between the government and the internet and telecom service providers must be revised, to limit government’s volition to take over telecommunication services. The Guiding Principles on Business and Human Rights recognize the responsibility of business enterprises to respect human rights, independent of State obligations or the implementation of those obligations. It provides for ways to implement the United Nations “protect, respect and remedy” framework on human rights. It requires businesses to carry out due diligence to check any breaches, maintain transparency in its conduct and provide remedies to the affected parties in case of any breach.
The law curbing digital access can be worthwhile only by providing more access. Greater transparency and accountability on account of the government, and information and communication technology companies must be fostered. Legal scheme for shutting down internet including blocking must be reframed so that – (i) the terms such as public order, morality, public morals etc. are precise enough and are comprehensible for the both the law enforcement agencies and the common man, and (ii) the reasons, recorded in writing, behind these shutdowns are publicly accessible for common guidance and judicial review.
This article is written by Nandini Garg. Nandini is student at NLIU, Bhopal. This article secured 3rd position in the RostrumLegal Essay Competition, 2017.
 The Digital India programme is a flagship programme of the Government of India with a vision to transform India into a digitally empowered society and knowledge economy.; About Digital India, Digital India, Ministry of Elections and Information Technology, Government of India, available at https://www.digitalindia.gov.in/content/about-programme, last seen on 08/12/2017.
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 TCP/IP (Transmission Control Protocol/Internet Protocol) is the basic communication language or protocol of the Internet. When you are set up with direct access to the Internet, your computer is provided with a copy of the TCP/IP program just as every other computer that you may send messages to or get information from also has a copy of TCP/IP; J. D. Bossler & N. W. J. Hazelton, Leveling And Vertical Location, 839 (2015).
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 All citizens shall have the right to freedom of speech and expression.
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 U.N. General Assembly, Universal Declaration of Human Right, Res. 3/217A, Sess. 3, U.N. Document A/RES/3/217 A (10/12/1948), available at https://www.un-documents.net/a3r217a.htm, last seen on 17/12/2017.
 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
 Commissioner for Human Rights, Council’s Issue Discussion Paper on Social Media and Human Rights, C.E. Document CommDH (2012)8, 8 (Feb., 2012), available at https://rm.coe.int/16806da579, last seen on 14/12/2017.
 Human Rights Committee, General Comment No. 34, Sess. 102, U.N. Document CCPR/C/GC/34, 3, ¶12 (12/09/2011) available at https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf, last seen on 04/12/2017 [“General Comment 34”].
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 Supra 5, at ¶10.
 Filtering of content on the Internet, using communications ‘kill switches’ (i.e. shutting down entire parts of communications systems) and the physical takeover of broadcasting stations are measures which can never be justified under human rights law.; Joint Declaration on Freedom of Expression and Responses to Conflict Situation, Article 19 (4/05/2015), available at https://www.article19.org/resources.php/resource/37951/en/joint-declaration-on-freedom-of-expression-and-responses-to-conflict-situation, last seen on 10/12/2017 [“Joint Declaration”].
 P. Micek, Internet kill switches are a violation of human rights law, declare major UN and rights experts, Access Now (4/05/ 2015), available at https://www.accessnow.org/internet-kill-switches-are-a-violation-of-human-rights-law-declare-major-un/, last seen on 12/12/2017.
 See U.N. General Assembly, The promotion, protection and enjoyment of human rights on the Internet, Res. 20/8, Sess. 20, U.N. Document A/HRC/RES/20/8 (16/07/2012), available at https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/G12/153/25/PDF/G1215325.pdf?OpenElement, last seen on 19/12/2017; U.N. Genral Assembly, Report of Special Rapporteur on promotion and protection of the right to freedom of opinion and expression, Res. 32/38, Sess. 32, U.N. Document A/HRC/32/38 (11/05/2016), available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/095/12/PDF/G1609512.pdf?OpenElement, last seen on 07/12/2017 [“2016 Report”]; U.N. General Assembly, The promotion, protection and enjoyment of human rights on the Internet, Res. 26/13, Sess. 26, U.N. Document A/HRC/RES/26/13 (14/07/2014), available at https://hrlibrary.umn.edu/hrcouncil_res26-13.pdf, last seen on 08/12/2017; U.N. General Assembly, The promotion, protection and enjoyment of human rights on the Internet, Res. 32/13, Sess. 32, U.N. Document A/HRC/RES/32/13 (18/07/2016), available at https://undocs.org/en/A/HRC/RES/32/13, last seen on 01/12/2017; U.N. General Assembly, The right to privacy in the digital age, Res. 68/167, Sess. 68, U.N. Document A/RES/68/167 (21/01/2014), available at https://ccdcoe.org/sites/default/files/documents/UN-131218-RightToPrivacy.pdf, last seen on 09/12/2017.
 Ministry of I& B v. Cricket Assn. of Bengal, 1995 (2) SCC 161.
 G. Bhatia, The Supreme Court’s IT Act Judgment, and Secret Blocking, Indian Constitutional Law and Philosophy Blog (25/03/2015), available at https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act-judgment-and-secret-blocking/, last seen on 03/12/2017.
 Sabu Mathew George v. Union of India (UOI) and Ors., 2017(1) Crimes 323 (SC).
 Shreya Singhal v. Union of India, AIR 2015 SC 1523.
 Access Now, Access Now submission to the United Nations Human Rights Council, on the Universal Periodic Review 2016 Cycle for India (2016), available at https://www.upr-info.org/sites/default/files/document/india/session_27_-_may_2017/accessnow_upr27_ind_e_main.pdf, last seen on 17/12/2017.
 M. N. Shaw, International Law, 411 -12 (5th ed., 2003).
 W. H.v. Heinegg, Legal Implications of Territorial Sovereignty in Cyberspace, 2012 4th Int’l. Conf. on Cyber Conflict 11 (NATO CCD COE Publications, C. Czosseck et al. Eds., 2012), available at https://www.ccdcoe.org/publications/2012proceedings/1_1_von_Heinegg_LegalImplicationsOfTerritorialSovereigntyInCyberspace.pdf, last seen on 09/12/2017.
 See Joint Declaration, supra 22.
 U.N. General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Res. 71/373, Sess. 71, U.N. Document A/71/373, 6, ¶11 (06/09/2016), available at https://undocs.org/A/71/373, last seen on 02/12/2017.
 See ibid, at ¶17.
 2017 Report, supra 10, at ¶14.
 Ibid, at ¶11.
 (1) Where the Central Government or any of its officer specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-Section (2) for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-Section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.
 (1) In cases where, in the opinion of a District Magistrate, a Sub- divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.
(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.
(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
(4) No order under this section shall remain in force for more than two months from the making thereof: Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification…..
 Guarav Sureshbhai Vyas v. State of Gujarat, W.P. (PIL) No. 191 of 2015.
 On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: Provided that the press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.
 Supra 28.
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 2017 Report, supra 36, at ¶10.
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 See 2017 Report, supra 36, at ¶45; supra 83, at 13; 2016 Report, supra 24, at ¶¶ 9-10.