Is there a Right to the Internet under International Law?
Module 3: Access to the Internet
An express right to the internet has not yet been recognised in any international treaty or similar instrument. This has been the source of much debate, and the arguments for and against whether the right of access to the internet are numerous.
|Arguments in favour of access to the internet as a human right(1)||Arguments against access to the internet as a human right|
|Necessity. There is a certain consensus on not only the usefulness of the internet but its crucial role as an “indispensable tool” for human rights and development in the current century||No international treaty directly creates a right of access to the internet, although some countries, mostly in Europe, have domestic legislation that does. In simple terms, it is not a human right if the international community has not recognised it as such in a binding instrument, and there is no discussion of a new treaty to do so in any forum.|
|Implied existence under current international human rights law. The full exercise of freedom of expression, participation in cultural life and enjoyment of scientific benefits requires access to the internet. Current standards of living include participation in the broader community in different ways, e.g. through the connection to the internet.||Analogy to other forms of media. There is no right to the telephone, the television, the printed press (either for publishing or receiving it) or any other similar medium that has imposed a duty on states to provide it to its citizens and cover its costs.|
|Inevitability. Several countries including Greece, Estonia, Finland, Spain, Costa Rica and France have asserted or recognised some right of access in their constitutions, legal codes, or judicial rulings. These are most easily accessed online.||Universality. Access to the internet is not an economic right that can be construed from article 11 of the ICESCR and article 25 of the UDHR, for they are representative of standards of living that cannot be considered on the same scale for countries in much different stages of development.|
|Inseparability. Technological progress changes how people enjoy their rights and governments should address the link between those rights and their current methods of enjoyment.||Nature as a right. Even if there is a legal consideration of access, it is established not as much as an individual right but as an obligation for states.|
|Progression. The notion of rights themselves has the ability to change, as social contexts change. The growing importance of the internet in changing social contexts makes it necessary to ensure access to it.||Means to an end. Access to the internet consists of technology, which is a tool, not a right itself.|
|Public support. Worldwide surveys show a single predominant attitude towards access to the internet: that it should be recognised as a right.(2)||Access to the internet is not absolutely necessary for participation in a political community. A big part of the world’s population is without internet access. It is only when such participation already exists and is taken away that it gets attention.|
|Inflation. Claiming that an interest is a basic, fundamental or human right, without considering the conditions under which it can really be realised, inflates the number of rights, diminishing the forcefulness of core traditional human rights.|
|Flexibility of existing human rights. It is not necessary to “create” new rights aside from those already recognised, but to ensure their exercise and enjoyment in changing technological contexts.|
|Side effects. Digital inclusion policies carry concerns regarding the true beneficiary. On one hand, access policies will benefit those users with devices with the ability to access the internet, therefore exacerbating inequalities. On the other hand, lack of control by governments would lead to the need for investment in private telecommunications companies, therefore granting them economic benefit before citizens.|
There is an increasing recognition of access to the internet being indispensable to the enjoyment of an array of fundamental rights. The corollary is that those without access to the internet are deprived of the full enjoyment of those rights, which, in many instances, can exacerbate already existing socio-economic divisions. For instance, a lack of access to the internet can impede an individual’s ability to obtain key information, facilitate trade, search for jobs, or consume goods and services.
Access entails two distinct but interrelated dimensions: (i) the ability to see and disseminate content online; and (ii) the ability to use the physical infrastructure to enable access to such online content. In 2003, UNESCO was among the first international bodies to call on states to take steps to realise a right of access to the internet. In this regard, it stated that:(3)
“Member States and international organizations should promote access to the Internet as a service of public interest through the adoption of appropriate policies in order to enhance the process of empowering citizenship and civil society, and by encouraging proper implementation of, and support to, such policies in developing countries, with due consideration of the needs of rural communities.
Member States should recognize and enact the right of universal online access to public and government-held records including information relevant for citizens in a modern democratic society, giving due account to confidentiality, privacy and national security concerns, as well as to intellectual property rights to the extent that they apply to the use of such information. International organizations should recognize and promulgate the right for each State to have access to essential data relating to its social or economic situation.”
In 2012, the United Nations Human Rights Council (UNHRC) passed an important resolution that “[called] upon all States to facilitate access to the Internet and international cooperation aimed at the development of media and information communications facilities in all countries”.(4)
This has been expanded upon in the United Nation’s Sustainable Development Goals (SDGs), which recognise that “[t]he spread of information and communications technology and global interconnectedness has great potential to accelerate human progress, to bridge the digital divide and to develop knowledge societies”.(5) The SDGs further call on states to enhance the use of Information Communication Technologies (ICTs) and other enabling technologies to promote the empowerment of women,(6) and to strive to provide universal and affordable access to the internet in least developed countries by 2020.(7)
The 2016 UN Resolution on the Internet, adopted by the UN Human Rights Council, recognises that the internet can accelerate progress towards development, including in achieving the SDGs, and affirms the importance of applying a rights-based approach in providing and expanding access to the internet.(8) Notably, it affirms the importance of applying a comprehensive rights‑based approach in providing and in expanding access to the internet,(9) and calls on states to consider formulating and adopting national internet‑related public policies with the objective of universal access and the enjoyment of human rights at their core.(10)
Notwithstanding whether the internet is seen as a self-standing right or an enabling tool to facilitate the realisation of other rights, the groundwork has firmly been laid for the need to realise universal access to the internet. States are concomitantly required to take steps to achieve universal access. However, in reality, universal access to the internet is far from being realised. This is due to a confluence of factors, including a lack of financial resources to be able to access the internet, inadequate locally-relevant content, insufficient levels of digital literacy, and a lack of political will to make this a priority.
In Kalda v Estonia, the European Court of Human Rights (ECtHR) held that the applicant’s right to freedom of expression had been violated through a prison’s refusal to grant him access to internet websites containing legal information, as this had breached his right to receive information.(11) The ECtHR noted that when a state is willing to allow prisoners access to the internet, as with the case in question, it had to give reasons for refusing access to specific sites.(12)