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

• Author: Hartmann, Ivar A.
• Position: II. The Judicial Enforceability of Internet Access as a Social Right E. Subsidiarity through Conclusion, p. 393-429

5. SUBSIDIARITY

   The principle of subsidiarity is a key component of the social state notion of the "enabling state". It also helps to adequately frame the justiciability of the positive dimension of social rights in constitutional systems that do not adopt the social state principle as it has been construed in German constitutional law. (429) Subsidiarity permeates all digital inclusion policies and judicial enforceability of the right to internet access so as to call for state affirmative action only for those who cannot obtain internet access by themselves. (430)

   The concept of subsidiarity employed in this context has roots in Ancient Greece, but a modern construction more similar to the one applicable in social rights theory can be traced back to 19th century Catholic doctrine. It informed the social and above all charity-oriented Rerum Novarum encyclical of 1891 and was given its traditional configuration in the 1931's Quadragesimo Anno encyclical. (431) As a development of the acknowledged value of charity and of helping those in need, the subsidiarity principle's social aspect dictates that people who cannot themselves provide their own subsistence must be awarded help from other people or institutions who are able to offer it. The reverse effect is that if someone is self-sustainable, other individuals and entities are not only relieved of having to assist, but are also forbidden to give unneeded support. (432)

   The underlying thread of subsidiarity is the placement of the individual at the center, as an inherent value. (433) Individuality thus demands aid when it proves essential, so that self-determination is not impaired, and it also constrains aid when it proves excessive, because the ultimate goal is that each person be self-sufficient. (434) This constraining, negative effect of the subsidiarity principle keeps socialism and extreme, disproportionate public social services at bay (435). It also forbids state omissions that endanger an individual's capacity to self-sustain and determine its own dignity. This resonates with the right to internet access' strong self-determination value. This latter effect seems to be in line with a legal notion of solidarity, but subsidiarity does not account for all of the complexity of solidarity as an element of constitutional law. (436)

   The principle of subsidiarity is very often associated with competence-allocation, since it has been elevated to guiding rule of the distribution of prerogatives between nation states and the European Union. The principle's applicability in this field is the same: lower, smaller political entities need to perform all undertakings that they can--and no less. Higher, larger entities must execute those tasks that are beyond smaller entities' reach--and no more. The core value is seen to lie with the smaller entities, in a parallel with individuals.

   As applied to social rights implementation, the subsidiarity principle therefore distinguishes between people that the state must help, because they ca not fulfill a specific basic need (associated with a social right) by themselves, and people who the state not only is not required to, but also should not assist, as they have the means for self-sustainability. Indeed, in Rodolfo Arango's normative concept of social rights, subsidiarity is part of the very existence or material pre-conditions of a social right such that a legal subjective position only comes into place if a state fails to fulfill a basic human need that the individual cannot by herself satisfy. (437) In Brazil, Ingo Sarlet argues that subsidiarity operates as an element of constitutional review such that a subjective right could only be derived from a constitutional social right norm if, among other things, the individual cannot achieve by herself the sought- after performance. (438) As such, the acknowledgement of a subjective right to internet access by a court--for example, in cases involving the existential minimum or material equality, as described below--would never accrue unless the petitioner is in an underprivileged position that prevents her from buying a computer and paying for regularly available ISP services, as well as seeking and funding her own information literacy training.

   The social state principle, carrying at its core the value of help for self-help, the progressive and gradual trait of social rights protection and the subsidiarity principle all contribute to shaping a constitutional review framework that prevents excessive demands on the state, caps the Judiciary's autonomy to influence public social policy and indicates the general direction to which courts should push governments in implementing the right to internet access, all the while leaving the specific route still up to the legislator to choose. The subsidiarity principle has admittedly lower relevance in the field of the progressive implementation of next generation connectivity infrastructure, as this concerns a development that encompasses society as whole, not specific disadvantaged groups or individuals. Nonetheless, subsidiarity contributes in a decisive way to answering the question of whether any citizen can ask courts to force government to provide free broadband.

6. EXISTENTIAL MINIMUM

   Merely a few years after the enactment of the 1949 Basic Law, the German Federal Administrative Court acknowledged the notion of an "existenzminimum", an existential minimum. In a case decided in the 1950's, the Court found that the social assistance legislation adopted by Germany two decades earlier was now incompatible with the new social state paradigm set fourth in the Basic Law. Such legislation illustrated the prevailing conception of social security in that country during the time of its enactment: the poor needed to be aided in order to prevent extreme poverty that would fuel a raging proletarian mob which might destabilize the state. At the behest of the Court, the German legislator created different social security legislation, built on the foundation of the individual's inherent value and with the aim of securing minimal standards of unemployment payments, healthcare and other services. This was in line with the social state principle and the recognition of every single person as a member of society entitled to his or her own rights (439).

   The Federal Constitutional Court took up this interpretation of the Constitution a couple of decades later, strengthening the understanding that the government can, in exceptional situations, be forced to take positive measures to protect social rights even in the absence of legislation to this effect. Therefore, the application of the constitutional dispositions on the social state principle and the human dignity authorize acknowledgement of a subjective right to certain positive performances. (440).

   Although it can be said that the Court has stood by the concept of the existential minimum ever since, only in the last twenty years has it issued rulings that better define this legal entitlement and its subjective right characteristic. (441). In so doing, regardless of the constant reference to the social state principle, the Court finds better support in the human dignity guarantee and the principle of material equality. (442) As a matter of fact, the social state provision has no interpretation subsidies such as legislative intent or historical conceptual substance. (443). This proves that making the social state provision explicit in the constitution is not a definitive element of the acknowledgement of an existential minimum or of its content. It also goes to show that the existential minimum, as a legal construct, should not be conceived as a rule. (444) Rather, it is only workable as a principle, the specific results of which cannot be decoded from a general clause except in concrete cases and cannot be expressly listed in constitutional provisions. (445)

   The protection of human dignity and material equality are arguably more relevant as grounds for the recognition of the existential minimum. Human dignity has been conceived as a fundamental constitutional clause that warrants against any possibility of disregarding an individual's intrinsic value as a human being. This is not to be mistaken with a natural law justification for social rights. Rather, it is a legal norm that forbids reification both by means of excessive state intrusion--such as torture--and total governmental neglect--such as failing to provide even elementary aspects of social security. In Brazil, where the Federal Supreme Court has applied the existential minimum standard to identify situations where a subjective right to state performances can be derived directly from the constitutional social rights provisions, human dignity (expressly enshrined as one of the main values of the Constitution) is seen as the core of the existential minimum's jurisprudential construct. (446) The Court is somewhat erratic as regards explicit allusions to the notion of existential minimum, sometimes indicating it, other times merely hinting at it. (447) Nevertheless, it has mandated the state to provide positive relief in situations where the implementation of a social right was seen as almost completely lacking, thus tracing the limits of the legislator's discretion in the realization of such rights. (448)

   The European Court of Human Rights has also forced states to take positive measures when the absence of such would violate human dignity. (449) In Z et al. v. The United Kingdom, the Court said that the state had violated Article 3 of the European Convention on Human Rights by leaving in their original home for five years children that had abusive parents and were entrusted to Social Services. (450) There they suffered from severe malnourishment and "appalling neglect", until finally the state transferred them to a different house. (451) . Even though it can be said that the Court's threshold of human dignity violation is lower for...