A right to free Internet? On Internet access and social rights.

• Author: Hartmann, Ivar A.
• Position: Introduction through I. The Positive Dimension of Free Speech in the United States B. The Access-Enhancing Regulation of Media Before the Internet 2. The Regulation of the Press, p. 297-329

TABLE OF CONTENTS INTRODUCTION I. THE POSITIVE DIMENSION OF FREE SPEECH IN THE UNITED STATES A. Positive Dimension of Free Speech in Non-Media-Related Areas B. The Access-Enhancing Regulation of Media Before The Internet C. Free Speech and Internet Access Promotion in a Democracy D. Intermediary Conclusive Remarks II. THE JUDICIAL ENFORCEABILITY OF INTERNET ACCESS AS A SOCIAL RIGHT A. The Positive Dimension of The Right to Internet Access and Government Affirmative Action B. On The Concept of Social Rights C. Greater Discretion awarded to Legislator D. Progressive Implementation E. Subsidiarity F. Existential Minimum G. Prohibition of Retrogression H. Protection in Connection with Equality I. Intermediary Conclusive Remarks CONCLUSION Cite as 13 J. High Tech L. 297

INTRODUCTION

If access to the internet is a human right, will people have a claim against their government for free internet? This is a key issue for the international human rights agenda in the beginning of the 21st century. Every time such a new human or fundamental right is argued for, that is the concern that inevitably follows. When the idea of a right to internet access is raised, governments in modern constitutional democracies are much less worried about a check on their discretion to censor speech on the internet as about the possibility that they will be forced to give away free broadband to every individual. There is a common perception that the relevance of a right is better comprehended when it is being constantly and utterly violated. Likewise, the content of human dignity is more easily conceptualized by pointing to instances where it is being severely abused. On what concerns a right to internet access, there are lessons to be drawn from focusing on the aspect of it that governments more openly reject.

Am I getting ahead of myself? The notion of a right to internet access was not even put forward here, much less adequately justified. Indeed, this is clearly the current stage of the discussion in policy and legal scholarship: questioning whether there should be such a thing as a human or fundamental right to internet access in a networked society. (1) I believe, however, that an inquiry on the content of such right and its enforceability is a core element of this discussion. And such element has indeed been a part of the dialogue in recent times.

Admittedly, there are plenty of other ways to go about explaining and justifying a right to internet access. If human rights appear historically when there is perceived need for them and the possibility of compliance--in other words, they start to exist once people successfully claim them, (2) then it makes perfect sense to investigate whether the internet is an important part of an individual's life. A lot of people seem to think that it is: in 2010, nearly four out of five adults from 26 different countries believed internet access to be a fundamental right. (3) The idea that internet access is a social good that calls for meaningful legal safeguard was suggested already in the late 1990's and, more importantly, in the first World Summit on the Information Society in 2003. (4) This is clearly not the home turf of lawyers, as it comprises either research in sociology, anthropology and psychology, or plain politics. On the other hand, for constitutional law specialists in countries where an entrenched bill of rights admits the recognition of new rights by judicial interpretation, there is plenty to be said on whether internet access would fit the requirements to be acknowledged as a constitutional right. In addition to that, a significant issue is whether a socially perceived need for internet access is not sufficiently covered by existing, traditional rights such as free speech and access to information. There's a reasonable case to be made that article 19 of the United Nation's Universal Declaration of Human Rights would place internet access under the umbrella of freedom of expression "through any media." (5)

There is undoubtedly considerable room for legal arguments that internet access per se does not fit the prevailing conception of a human or constitutional right, regardless of how useful it may be to people. This is by no means a minority position and has garnered the support of Vinton Cerf, of all people--one of the two developers of the TCP/IP protocol on top of which the internet was built. (6) Cerf rejects the possibility of a human right to internet access, but he sees human rights as those which are timeless and "intrinsic to us as human beings", as opposed to civil rights. (7) The fact that he concedes internet access might be a civil right just goes to show the important role to be played by lawyers in informing the debate with carefully crafted concepts of human rights, civil rights, constitutional rights, and so on.

This is not the main contribution that I wish to make in this paper. What I want to propose is that understanding the possibilities and limits of protecting a certain content of the right to internet access is crucial not only in evaluating the prospects of its recognition as a subjective right, but also, and perhaps more importantly, in realizing why it must be an autonomous right and not a protection derived from the freedom of expression or access to information. The content I am referring to is the positive dimension of the right to internet access.

For those who find the proposition of an internet access right to be senseless, a positive dimension that would require states to act affirmatively to guarantee internet to people is surely scandalous. The United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, is not one of these people; in his 2011 report, he emphasized the elementary function of internet access in enabling free speech and access to information. (8) Moreover, he specifically asserted a "positive obligation" of states in making internet "widely available, accessible and affordable to all." (9) And so it is that countries like Finland and Estonia have indeed already taken affirmative steps to meet this positive obligation. (10) This is all in line with the recognition of the inherently social aspect of digital inclusion policies in societies where human interaction is increasingly part of an "'always connected' presence," (11) which countenances sociability aspects that are unique to the internet. (12)

In Finland this was achieved with the Communications Market Act 393/2003, which mandates private telecom companies to offer individuals a broadband connection. (13) Such provision is complemented by the Decree of the Ministry of Transport and Communications on the Minimum Rate of a Functional Internet Access as a Universal Service 732/2009, which established the minimum bandwidth for such connection to be 1 Mbps. (14) The Estonian Public Information Act of 2000 establishes, under the rubric of "Access to Data Communication Network" that "[e]very person shall be afforded the opportunity to have free access to public information through the Internet in public libraries, pursuant to the procedure provided for in the Public Libraries Act." (15)

To be sure, I am not suggesting that there should not be normative constraints on the extent to which governments can restrict someone's existing internet experience. Much to the contrary, recent developments in different countries have shown that state-performed tampering with people's ability to communicate online has a great impact. (16) Furthermore, it became clear that a legal mechanism for protection of access to the internet as such will deter practices that the right to free speech might not. (17) During the national uprisings in the Middle East in early 2011, authoritarian regimes attempted--at times, successfully--to simply shut down internet access in an entire nation. (18) The fact that in...