On 12 February 2011 we had a post on the so-called “human right to internet access”.   This is a point which has been considered on a number of occasions by international organisations over recent months.  On 16 May 2011, there was a report to the Human Rights Council by Frank La Rue, the UN Special Rapporteur on on the promotion and protection of the right to freedom of opinion and expression.

Report concluded that cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, is disproportionate and thus a violation of Article 19 of the ICCPR.

The other conclusions and recommendations included the following

  • there should be as little restriction as possible to the flow of information via the Internet, except in few, exceptional, and limited circumstances prescribed by international human rights law;
  • that States that currently block websites should provide lists of blocked websites and full details regarding the necessity and justification for blocking each individual website.
  • that States should decriminalize defamation.
  • that any requests submitted to intermediaries to prevent access to certain content, or to disclose private information for strictly limited purposes such as administration of criminal justice, should be done through an order issued by a court or independent body

In July 2011 the Organization for Security and Cooperation in Europe (“the OSCE”) launched a report on “Freedom of Expression and the Internet” – a study of legal provisions and practices related to freedom of expression,the free flow of information and media pluralism on the Internet in OSCE participating States.

The OSCE Report noted that only 30% of the States participating in the survey stated that they recognize access to the Internet as a basic human right or as implied to the fundamental right to freedom of expression and thus concluded that, as an aim for future developments:

“Everyone should have a right to participate in the information society, and the states have a responsibility to ensure citizens’ access to the Internet is guaranteed. Furthermore, Internet access policies, defined by governments, should be in line with the requirements of Article 19 of the Universal Declaration of Human Rights as well as Article 19 of the International Covenant on Civil and Political Rights and (where applicable) with Article 10 of the European Convention on Human Rights“

The issue was also considered by four special rapporteurs on freedom of speech: for the UN, the OSCE, the Organization of American States and the African Commission on Human and Peoples’ Rights .   On 1 June 2011 they issued a “Joint Declaration on Freedom of Expression and the Internet”.

In the Joint Declaration, the four rapporteurs maintain that States have the obligation to promote universal access to the Internet and that

“Cutting off access to the Internet, or parts of the Internet, for whole populations or segments of the public (shutting down the Internet) can never be justified, including on public order or national security grounds” [6b].

It stated that any measure that limits access to the network is unlawful unless it meets the strict requirements established by international standards for such actions.  The rapporteurs argued that freedom of expression must apply to the Internet in the same way it applies to all other media. In this respect, any restriction imposed must be expressly established by law, pursuing a legitimate aim recognized by international law, and necessary to accomplish such aim.

The joint declaration argues that actions such as the mandatory blocking of websites are extreme actions that may only be justified in accordance with international standards, such as the protection of minors from sexual abuse. Content-filtering systems that cannot be controlled by the users, imposed by governments or commercial providers, are also actions that are incompatible with freedom of expression.