Do digital rights exist?
- First layer: freedom of technical access to the internet
- Second layer: freedom on the internet itself.
The ... right to Internet Access?
- Neither the relevant provisions nor courts' decisions clarify whether the right to Internet Access does amount to a human or constitutional right.
- Difference between freedom to Internet access and freedom on the Internet.
Is the right to Internet Access an autonomous right?
- Right to Internet Access as an autonomous right?
- Constitutional rank
- Primary Law rank
(As a constitutional rank it's very difficult to restrict, while being a primary law, gives less guarantees, because another law could reduce its validity).
- Right to Internet Access as a medium for the enjoyment of other constitutional rights?
- Freedom of Expression (It exist, and can be restricted by the State in some cases, however it's not perceived as a positive obligation, which means that the State has not to provide you what's needed to have freedom of speech).
- Education (social-Welfare right, perceived as a positive obligation by the State, therefore bounding the right to Internet Access to the Education means that the State has to provide what's needed).
(There is a tendency of connecting the Right to Internet Access to the freedom of expression, and the step forward that the European framework has made is not only to consider the means to access internet, but also the quality to enjoy the Internet (such as speed of the connection)).
Problems Connected to Internet Access
- Digital Divide
- Italian Constitutional Court, No. 307/2004
- Internet Access as a social right?
- Internet Access as a medium to meet essential service levels
- Guaranteeing Internet Access requires investments in infrastructures
- Governance of the network.
Does the Internet need a Bill of Rights?
Internet Governance Forum (IGF) purpose is to support the United Nations Secretary-General in carrying out the mandate from the World Summit on the Information Society (WSIS) with regard to convening a new forum for multi-stakeholder policy dialogue. (http://www.intgovforum.org)
A Way to Reconcile Natural Freedoms and Regulatory Needs?
- 2007: Rio Conference - Internet Bill of Rights
- 2009: Internet Rights & Principles Coalition
An Internet Bill of Rights
UN Report - 2011
- F. La Rue (UN Special Rapporteur), Report on the promotion and protection of the right to freedom of opinion and expression.
- Internet access as a medium for users to exercise their freedom of expression and information.
- Is Internet access itself a fundamental right?
(There is a big difference between looking at the Right to Internet Access as a Human Right or as a Fundamental Right, because when dealing with it as a fundamental right, we have to take into consideration the specific constitutions of the States which will of course behave differently).
Internet Access: A Fundamental Right?
- "States should adopt effective and concrete policies and strategies ... to make the Internet widely available, accessible and affordable to all".
- Despite these provisions, the Report does not expressly qualify Internet Access as a human right per se. Rather, it stresses the idea that Internet Access allows citizens to enjoy other human rights via the Internet.
- Different approaches among states to eliminate the "digital divide".
Internet and Constitutional Provisions
Only few (recent) Constitutions have specific provisions concerning the Internet and/or the freedom on the Internet and/or the free access to the Web.
- Greece, art. 5A, introduced in 2001
- Honduras, art. 182, introduced in 2003 - habeas data
- Venezuela, art. 28, introduced in 1999
- Ecuador, art. 16, introduced in 2008.
Estonia,
- Article 5 of Telecommunications Act (2000)
Internet must be universally available to all registered users, regardless of their localization, at a uniform cost.
- Internet Access is conceived as "universal right"
- No discrimination based on territory
- No price-discrimination
- Requires private operators (ISP) to guarantee Internet access to all citizens
- UNIVERSAL SERVICE doctrine (access to a reasonable quality)
Finland
- Finland, Article 60 of Communications Market Act (2009):
- Providers must guarantee users an appropriate Internet connection (broadband) at their domicile at reasonable costs and without any discrimination based on users localisation.
- The Finnish Communications Regulatory Authority (FICORA) is tasked with verifying the costs applied by providers.
Spain
- Spain, Article 52 of Law No. 2 of 2011:
Internet access is part of the telecommunications universal service and must be provided with a broadband at a downstream of at least 1 Mbit/second.
Internet access must be guaranteed regardless of the specific devices or technologies (access is not limited to fixed infrastructures).
It is for the Government to establish the conditions for accessing the public network and to modify the connection speed in accordance to the technological advancements.
US Supreme Court
- US Supreme Court, Reno v. American Civil Liberties Union, 26-6-1997
- The Supreme Court found that the Communications Decency Act (1996), by restricting the broadcasting of adult materials via the Internet, was against the First Amendment to US Constitution: "Although the Government has an interest in protecting children from potentially harmful materials [...] the CDA pursues that interest by suppressing a large amount of speech that adults have a constitutional right to send and receive."
UK Courts
- High Court of Justice - Court of Appeal, The Queen v. Smith and Other, 19-7-2011
- "A blanket prohibition on computer use or Internet access is impermissible. It is disproportionate because it restricts the defendant in the use of what is nowadays an essential part of everyday living for a large proportion of the public, as well as a. requirement of much employment".
- Restrictions on Internet connection must be proportionate, reasonable and in accordance with the purposes they are aimed to.
French Conseil Constitutionnel
- Conseil Constitutionnel, Hadopi (2009-580), 10-6-2009
- HADOPI: an administrative authority in charge of the control and sanctioning of copyright infringements via peer-to-peer networks. It had originally the power to disconnect users from the Internet in case of repeated breach of copyright.
- Freedom of Internet access and not right to Internet access.
- The Conseil did not qualify the Internet access as a fundamental right per se, but only as a condition for the enjoyment of the freedom of communication protected by Article 11 of the Declaration of the Rights of Man and of the Citizens (1789).
Costa Rica's Constitutional Court
- Costa Rica - Sala Constitucional, 2010-12790
- The advancements in technology have impacted on the way individuals communicate and develop social relationships.
- Therefore, nowadays access to technology qualifies as a basic instrument to enjoy fundamental rights such as democratic participation, freedom of expression, freedom of information.
- In particular, Internet access amounts to a fundamental right: reference is expressly made to the decision of the Conseil Constitutionnel which evoked Article 11 of the the Declaration of the Rights of Man and of the Citizens (1789).
Conclusions
- There are no legal grounds at international level to qualify Internet access as a fundamental right.
- Lack of enforceability: no judicial remedy.
- Is extending constitutional protection of other fundamental freedoms (arts. 15 and 21 of the Italian Constitution) enough?
- Internet Access as a social right, i.e. right to a positive action from a state for individuals to enjoy other fundamental rights.