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

AuthorHartmann, Ivar A.
PositionII. The Judicial Enforceability of Internet Access as a Social Right A. The Positive Dimension of the Right to Internet Access and Government Affirmative Action through D. Progressive Implementation, p. 362-393
  1. THE JUDICIAL ENFORCEABILITY OF INTERNET ACCESS AS A SOCIAL RIGHT

The major goal of this second part is to show how the enforcement of a right to internet access is compatible with the judicial protection of social rights, a well-developed tradition by the jurisprudence in a few countries. In so doing, I intend to make clear that digital inclusion policies constitute the main share of such positive governmental action even if an independent right to internet access is rejected and free speech is seen as the relevant, applicable right in this context. (325) Also, I explain how the recognition of a state interest in actively implementing digital inclusion policies plays a decisive role even in a setting, as is that of American constitutional law, where the Constitution only operates as a check on government action, but does not in any way mandate state positive action to protect individual rights. (326)

This study clearly intends to collaborate in the argument for the acknowledgment of an independent constitutional or human right to internet access, as opposed to the protection of internet access as a duty ancillary to the right to freedom of expression. Nevertheless, the denial of such argument does not have the effect of rendering the propositions developed throughout the paper into moot points. If a right to internet access is excluded entirely, then the first part of this paper helps in making clear that freedom of expression has a positive dimension, not only a negative one. It also shows how the positive dimension of free speech today comprises digital inclusion policies--getting individuals to the platform, with the adequate skills to communicate in it. The second part is then about the state interest in the promotion of free speech as a justification for the restriction of other rights--like the freedom to conduct a business--such that when a government takes the initiative to enact digital inclusion policies it will not incur into an unconstitutional intervention. And lastly, in states where a constitution's call for positive government action is judicially enforceable, the protection of this positive dimension of free speech is outlined in social rights jurisprudence. (327)

I am not claiming that the approach to these issues is the same regardless of whether one adopts freedom of expression or internet access as the right being protected. I believe the controversies will be framed in a sharper way and the scope of the protection afforded by courts will be better demarcated if one acknowledges that the right being protected is internet access itself. But a less satisfactory solution is by no means a completely unacceptable one, of course. Basing the protection of digital inclusion on free speech will still deliver a more adequate protection of people's needs than refuting the fact that an affirmative government action caters to the value of fostering communication.

A clarification is warranted before I move on. While the first part of this paper was focused on American law, the second part draws heavily from legal principles, rules, concepts and court rulings from different countries such as Germany, Brazil, Colombia, South Africa, France, India and Israel and from American state constitutional law. Admittedly, this type of comparative constitutional law analysis would profit from an in-depth knowledge about each of these legal systems and the political and cultural aspects in their background. Although useful, this is something that would render my argumentative aim unfeasible in the length of a paper such as this. What I am proposing here is not that the elements of social rights enforceability presented should be effortlessly accepted as they are, without question. I do not assume constitutional law is more or less the same in these different countries: the recognition of the rich difference between the legal systems surveyed here and those of the readers is an elementary part of the dialogical approach to constitutional law that I use in this paper. (328) I intend to expose this richness to critical review by lawyers, judges and policymakers from countries that are considering constitutionally protecting internet access as a right. (329) I do not intend to incite comparative "cherry-picking" nor the adoption of foreign legal practices based on authority. Whatever conclusion is made by readers on the usefulness of this second part of the paper should be arrived at with an eye on the content and merits of importing such concepts (330)--an assessment only the "importers" can make, as I believe that the convergence of constitutional law follows internally-defined conditions. In other words, "constitutions reflect deeper forces--technological, demographic, economic--and so constitutions converge across countries just when those other factors converge." (331) The contribution in this second part is thus potentially relevant (even if it does not include a substantial evaluation of the general national context in which the constitutional law of these countries is inserted) because "[o]penness to the experiences in self-government of other political communities, for instance in the use of foreign law in constitutional interpretation, is part of the strategy for self-correction." (332)

  1. THE POSITIVE DIMENSION OF THE RIGHT TO INTERNET ACCESS AS A JUSTIFICATION FOR GOVERNMENT AFFIRMATIVE ACTION

    One of the roles that the protection of social rights as a constitutional level interest has played, in societies where government provides welfare services, is that of justifying restrictions on other individual rights. Courts will often review a compromise made by public authorities where the creation or maintenance of a social service has been achieved by imposing a constraint on the full enjoyment of a traditionally liberal right. Such constraint can only stand if the government interest in pursuing it is supported by another interest of constitutional hierarchy. (333) The duty to actively protect another constitutional right is one possible interest. Now, there are several ways this situation could play out in regard to digital inclusion policies. Government might decide to levy a tax in order to fund a subsidy for the less expensive broadband access options available to citizens. Or it could opt to use public funds to provide for special capacity-building courses to members of minorities groups such that they are taught crucial internet use skill like web searching. The state could also impose a tax on software developers in order to support the coding of applications (for all platforms) that would make web browsing more accessible to handicapped people.

    One of the options adopted by many national and local governments is to directly fund the construction of the physical support for high-speed broadband networks. (334) That is to say, public authorities often observe the need to fill a gap in the roll out of next generation connectivity conduits in their communities or countries. (335) Because of the extremely high cost of the initial investment and the risk that it will not pay itself in time or at all, private telecommunication companies are avoiding the deployment of fiber optics to each home. (336) When a government decides to make it a policy goal to create this infrastructure and use its financial resources to this end, it will usually restrict individual rights in some way, either directly or indirectly.

    This is...

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