Is There a Right to the Internet under International Law?
Module 3: Access to the Internet
Not surprisingly, no human rights treaty explicitly recognising a right to access the internet, given that the main such treaties were developed before internet usage became widespread. However, it is increasingly being recognised that the internet is now central to the exercise of the right to freedom of expression, given that it is the dominant means for disseminating information and ideas, whether this involves giving voice to one’s views or accessing information. As such, there is a growing body of authoritative statements to the effect that states are under an obligation to take progressive steps to ensure universal access to the internet.(1)
It is important to understand the nature of this right, as it is being recognised. It is more along the line of certain other economic and social rights, like the right to education, which is recognised by States “with a view to achieving the full realization” over time, rather than immediately.(2) In this regard, it differs significantly from civil and political rights, which states are expected to respect immediately. However, the progressive development of rights does not mean they are inconsequential. Rather, it means that states are required to devote sufficient attention and resources towards achieving these goals.
Although it may seem anomalous to consider access to a certain technology as a right – after all, no right to access broadcasting or the print media has ever been recognised – but the internet is simply not analogous to these other technologies. As important as they were, they do not begin to match the importance of the internet in daily life, and in particular as an expressive medium. Only a tiny fraction of the world’s people have ever had a chance to express themselves through the print or broadcast media, whereas this is not the case at all with the internet. It is also relevant to note that Worldwide surveys show a single predominant attitude towards access to the internet: that it should be recognised as a right.(3)
It should also be noted that there are arguments against recognising a right of access to the internet. Some may claim that this is simply not analogous to other human rights or that expanding the scope of rights undermines the high regard placed on a smaller number of core rights. And states have proven somewhat reluctant to recognise this right, given the important implications for them, including in terms of spending. At the same time, the direction here is reasonably clear.
There is also 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 the technological ability to make use of the internet in a manner that is affordable, safe, secure, effective and meaningful. 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:(4)
“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”.(5)
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”.(6) The SDGs further call on states to enhance the use of information and communication technologies (ICTs) and other enabling technologies to promote the empowerment of women,(7) and to strive to provide universal and affordable access to the internet in least developed countries by 2020.(8)
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.(9) Notably, it affirms the importance of applying a comprehensive rights‑based approach in providing and in expanding access to the internet,(10) 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.(11)
In successive Joint Declarations, the special international mandates on freedom of expression at the UN, OSCE, OAS and African Commission have made it clear that they view the right to freedom of expression as including an obligation on states to promote universal access to the internet. For example, in their 2011 Joint Declaration on Freedom of Expression and the Internet, they stated: “Giving effect to the right to freedom of expression imposes an obligation on States to promote universal access to the Internet.”(12)
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.(13) 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.(14)
In addition to these international developments, 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.
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 political will to make this a priority, inadequate locally-relevant content, insufficient levels of digital literacy, and challenges in providing last mile access in many contexts.