ELPIS Law Review - Beatriz Leitão

 Written by: Beatriz Fernandes Leitão

Second-year student from the University of Lisbon Faculty of Law

Student Number: 64477, Class: 2B, 17

“Access to the Internet as a Human Right – Commentary”

    The right to freedom of opinion and expression and the Internet are, in of themselves, subjects of immense discussion among doctrine and jurisprudence. Therefore, it comes as no surprise that many have already voiced their opinions on the matter, such as our distinguished Professor Rui Guerra Fonseca, from the University of Lisbon Faculty of Law.

    In his ELPIS v-LAW Review No. 3/2021 - «20(2)1 Law in a Space Odyssey – Robots, Computers, Digitalization as the new challenges to the Law»'s v-article/v-log regarding the topic of "Access to the Internet as a Human Right", the professor expresses his views on the matter. Thanks to his accessible and straightforward exposition, all viewers can gain an understanding of the subject matter.

    To better grasp the topic at hand, one must first ask these questions: What are human rights, and where are they established? What is their legal value? In what way are they applied in the portuguese legal system? Furthermore, can the access to the Internet even be considered a human right? And, if not, can it still be derived from another primary human right?

    Bearing this in mind, I will try to answer these questions and provide a view of my own on the subject.

    Concerning the first question, human rights are the primary rights and freedoms that belong to every person in the world, from the time they are born until the time of their death. They apply regardless of where you are from, what you believe in or how you choose to live your life.

    The human rights are reflected in the Universal Declaration of Human Rights (UDHR).

    This 30 Article document is not a treaty, so it cannot directly create legal obligations for countries. Notwithstanding this fact, the UDHR is a representation of the fundamental values that are shared by all members of the international community. It has had an acute influence on the development of international human rights law. This is why some argue that since countries have consistently invoked the Declaration for more than sixty years, it has become binding as a part of customary international law.

    Moreover, the UDHR has given rise to a wide range of other international agreements which are legally binding on the countries that choose to ratify them. Some examples are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). [1]

    Regarding the UDHR application in the portuguese legal system, as expressed before, it cannot have a binding value to Portugal. However, the Constitution of the Portuguese Republic establishes on Article 8, number 1 that the norms and principles of general or common international law form an integral part of Portuguese law.

    In addition, Article 16, number 2 of the Constitution of the Portuguese Republic also determines that the constitutional precepts concerning fundamental rights must be interpreted and completed in harmony with the Universal Declaration of Human Rights. It is by these precepts that the UDHR acquires legal value in the portuguese legal system.

    Questioning if the access to the Internet can be considered a human right has as much of a simple answer as it has a complicated one.

    The simple answer is no. Since, technically, no article in the UDHR establishes the access to the Internet as a human right. On the other hand, in regards to Article 19 of the Universal Declaration of Human Rights, 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.

    As the former United Nations Special Rapporteur for promotion and protection of the right to freedom of opinion and expression, Frank La Rue stated on May 16, 2011: "Given that the Internet has become an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the Internet should be a priority for all States. Each State should thus develop a concrete and effective policy, in consultation with individuals from all sections of society, including the private sector and relevant Government ministries, to make the Internet widely available, accessible and affordable to all segments of population." [2]

    The former rapporteur anchored this statement in the belief that, without the Internet, many of our human rights, namely freedom of opinion and expression, would be questioned. Therefore, while the access to the Internet does not pose a human right, it is a vital instrument to achieve them.

    Considering the aforementioned point, it seems reasonable to conclude that the right to access the Internet can be derived from the primary right of freedom of opinion and expression and, consequently, the right to communicate.

    And since the right to communicate is a core right that allows us to exercise our rights and fulfil our responsibilities, the states should provide their people with access to the Internet.

    Ultimately, it is unquestionable that some may misuse this right. Nevertheless, that only shows that the right to access the Internet is, as most rights, a safeguard of our basic needs as human beings and not a weapon to be wielded against our equals. But a simple tool that is not right nor wrong in itself, only in the way that it is used.

    Thus, even if this right may be used in ways that violate human rights or cultivate cultural imperialism, that cannot serve as an excuse for there to be no right to the Internet.

    Ergo, while the access to the Internet is not a human right, it is indispensable to guarantee them. However, the right to freedom of opinion and expression can be contemplated as a complex right with many materialisations, so to accomplish it, one must first guarantee the right to access the Internet. Hence it should be considered a right and, therefore, provided to all by The State with the appropriate protection.