A Human Right to Internet Access?

The 17 May is “World Telecommunication and Information Society Day” the aim of which is to help raise awareness of the possibilities that the use of the Internet can bring to societies and economies.   This leads us to reflect on the question of “internet access” as a basic human right.  This is, unsurprisingly, not a right which appears in any “human rights convention” or constitution.  But, it is not just something contemplated by eccentric bloggers.  Such a right received legal recognition by the French “Conseil Constitutionel” last year in Decision n° 2009-580 of June 10th 2009.

The Conseil was considering French legislation which allowed the Committee for the Protection of Copyright to cut off internet access to those who continued to download copyright material illicitly after two warnings.   This was considered to be incompatible with the 1789 “Declaration of the Rights of Man”

“Article 11 of the Declaration of the Rights of Man and the Citizen of 1789 proclaims : “The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may thus speak, write and publish freely, except when such freedom is misused in cases determined by Law”. In the current state of the means of communication and given the generalized development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions, this right implies freedom to access such services”. [12]

As a result, Parliament was not at liberty to allow the Committee, which was an administrative body not a court, to determine whether or not someone had access to the internet.

The powers of this Committee may thus lead to restricting the right of any person to exercise his right to express himself and communicate freely, in particular from his own home. In these conditions, in view of the freedom guaranteed by Article 11 of the Declaration of 1789, Parliament was not at liberty, irrespective of the guarantees accompanying the imposition of penalties, to vest an administrative authority with such powers” [16]

If “access to the internet” is a necessary part of the freedom to communicate then, by similar reasoning, it should also form part of the “freedom of expression” guaranteed by Article 10 of the European Convention on Human Rights.   Thus it could be argued that in Britain a statutory provision which allowed an administrative body to remove a person’s internet access would be incompatible with Article 10.

The argument that access to the internet is a human right is in line with worldwide public opinion.  In 2010 the BBC reported the results of an opinion poll conducted for the BBC World Service showed that nearly 80% of respondents agreed or strongly agreed that access to the internet was a “fundamental right”.

However, a note of caution is sounded by the recent judgment of the High Court in Ireland in EMI Records v Eircom [2010] IEHC 108 – a case in which the plaintiff record company and others sought to prevent the theft of copyrighted material over the internet by compelling the service provider to cut off the offending individuals.  Mr Justice Charleton said

“The internet is only a means of communication. It has not rewritten the legal rules of each nation through which it passes. It is not an amorphous extraterrestrial body with an entitlement to norms that run counter to the fundamental principles of human rights”.

He went on to approve an agreement under the terms of which the service provider imposed a “three strikes and you’re out” policy on those involved in illegal file sharing.  He suggested that the right to be identified with and to reasonably exploit one’s own original creative endeavour is a human right.  In relation to “disconnection” he said

“This is a serious sanction. Some would argue that it is an imposition on human freedom. There is no freedom, however, to break the law. Further, while it is convenient to have internet access at home, most people in Ireland have only to walk down to their local town centre to gain access for around €1.50 an hour”.

This reminds us that, whatever the status of the “right to internet access” it is a right which still needs to be balanced against other rights – for example the right of copyright holders to protect and exploit the products of their work.     The right to internet access, like the right to freedom of expression from which it is emerging, is not absolute.