ELPIS Law Review - Maria Margarida Kolmer

Written by: Maria Margarida Mendes Calixto Kolmer

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

Class: 2B, 17

Student number: 61072

Commentary on ELPIS v-LAW Review No. 3/2021

«20(2)1 Law in a Space Odissey – Robots, Computers, Digitalization as the new challenges to the Law»

 

“Access to the Internet as a Human Right”
Rui Guerra Fonseca | University of Lisbon School of Law

The internet has revolutionised virtually every facet of human life. People use the internet to express their thoughts and opinions, to educate themselves, to find information on practically any subject, to maintain relationships with their family and culture, to conduct business, to work and to seek healthcare. It has become a global force for democratisation and mostly positive social progress.

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 should be considered a human right are numerous.

In his article, Doutor Rui Guerra Fonseca expresses how the internet has become a constant in our lives so much so, that we can´t imagine life without it. Of course, this is applicable to our specific reality in a developed country, but it´s certainly not a given assumption for the rest of the world. According to a World Economic Forum report, 3.7 billion people around the world still have no internet access. If it is bad enough that, globally, only 55% of households are connected, what’s worse is that the pandemic has widened the existing digital divide. In the developed world, 87% of households are connected, compared with 47% in developing nations, and just 19% in the least developed countries. The divide also runs within countries: UNICEF reports that in 71 countries more than half the population has no access, particularly those living in remote areas.

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. Doutor Rui Guerra Fonseca considers the internet an essential asset in today’s world. 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. This leads to the reality, that the internet has an implied existence under current international human rights law. Several countries including Portugal, Greece, Estonia, Finland, Spain, Costa Rica and France have asserted or recognised some right of access in their constitutions, legal codes, or judicial rulings. Technological progress changes how people enjoy their rights and governments should address the link between those rights and their current methods of enjoyment.

The internet has become an important tool for circulation and communication. The growing importance of the internet in changing social contexts makes it necessary to ensure access to it.

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.

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”. This has been expanded upon in the United Nation’s Sustainable Development Goals (SDGs), which recognise that “[the] 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”. The SDGs further call on states to enhance the use of Information Communication Technologies and other enabling technologies to promote the empowerment of women, and to strive to provide universal and affordable access to the internet in least developed countries.

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. Notably, it affirms the importance of applying a comprehensive right‑based approach in providing and in expanding access to the internet, 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.

In Kalda v Estonia, the European Court of Human Rights (ECHR) 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. The ECHR 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.

 In the subsequent decision of Jankovskis v Lithuania, Application No. 21575/08, 17 January 2017, also in relation to a prisoner who had been refused access to a website containing education-related information, the ECHR again upheld the applicant’s claim of a violation of the right to freedom of expression.

This imposes the question, if the access to internet constitutes a human right by itself or if it´s an instrument for rights that are already protected, like freedom of expression.

If we adopt an instrumental perspective, internet access cannot be considered a human right by itself. While it can be a powerful tool in helping people maintain and improve their already protected human rights, there should be a distinction between a human right and an enabler of human rights. Because technology is constantly changing, granting one specific technology the status of a human right would wrongly emphasize the importance of one technology that will likely change or perhaps become obsolete in the future. Access to the internet consists of technology, which is a tool, not a right itself. 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. 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.

There is a high bar for something to be considered a human right. In a “simple” way of explaining it, it must be among the things we as humans need in order to lead healthy, meaningful lives, like freedom from torture or freedom of conscience. It might be a mistake to place any particular technology in this exalted category, since over time we could end up valuing the wrong things. One of the ways to characterize human rights is to identify the outcomes that we are trying to ensure. These include critical freedoms like freedom of speech and freedom of access to information—and those are not necessarily bound to any particular technology at any particular time. Improving the internet is just one means, albeit an important one, by which to improve the human condition. It must be done with an appreciation for the civil and human rights that deserve protection—without assuming that access itself is such a right. 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.

Whether or not it is a human right in its own respect, the internet provides the gateway to other freedoms, notably freedom of expression and the right to family and private life and therefore access to can be, practically, inseparable from the rights themselves.