Posted By: Robert McManimon
The modern international human rights regime is complex. There are, of course, codifications of binding agreements between states found in bilateral and multilateral treaties that discuss the various underpinnings of the legal regime. There are even rights and norms that have been accepted as binding international custom. Whether customary international law or the product of a treaty, these norms generally place a duty upon states. Often, this duty requires them to abstain from various types of behavior, or in rare cases places a burden upon them to facilitate the fulfillment of those norms for persons residing within their espace juridique. With the emergence of the internet, you have an increasing emphasis being placed upon its importance as a mechanism for national and international commerce and communication. The medium, with its unique transnational benefits and the ease with which it facilitates information exchange, has spurred a common and important question: Does the modern human rights regime protect access to the internet? And if not, should it?
Article 8 of the European Convention on Human Rights (ECHR) reads:
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. (http://www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article-8-right-to-respect-for-private-and-family-life.html).
In 2013, the European Data Protection Supervisor (EDPS) – the head of an independent supervisory body tasked with ensuring the right of Europeans to data privacy – published an opinion wherein they discussed the potential human rights implications to the enforcement of the Anti-Counterfeiting Trade Agreement treaty.((http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:147:0001:0013:EN:PDF))
In broad terms, this treaty would have required European governments to implement disconnect policies in relation to reported instances of copyright infringement. This letter discussed how such a policy might be generally violative of the ECHR, by virtue of its arbitrary and disproportionate requirements. Namely that it would require Internet Service Providers to disconnect access to those users who purportedly violated the tenets of the act 3 times. It postulates that a less intrusive method of providing copyright protection may exist, and that European Human Rights Law would require such a method to be implemented instead. Perhaps most important, the EDPS discusses how the act would interfere with the right to “to freedom of expression, (and) freedom of information and access to culture”. These rights, not uniquely European, suggest the growing trend toward recognizing access to the internet as a protected public forum and a basic human right.
Further evidence of this emerging trend can be found in the Report of the Special Rapporteur to the General Assembly :
The Internet has become a vital communications medium which individuals can use to exercise their right to freedom of expression, or the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers, as guaranteed under articles 19 of both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. www.ohchr.org/Documents/Issues/Opinion/A.66.290.pdf.
With the emergence of this trend, it may well be the case that we are moving toward a future wherein many states begin to view access to the internet as a positive right – where the state would be obligated to not only not impede the free exchange of ideas, but actively facilitate it for persons residing within their jurisdiction. However, it is unlikely that most states will take this liberal of an approach to the issue.
If the modern human rights regime does, in fact, recognize a right to access the internet as a method of free expression or assembly, the actual implications would likely be limited. In the American context, we could hardly imagine the right manifesting itself as free internet for all. More likely, it would require that the government begin to modernize the infrastructure of the internet, to ensure that those in rural communities have the capacity to access the internet. Perhaps it would mean nothing more than the negative right to not have the government substantially interfere with the right to access the internet for legitimate, legal purposes. Regardless of the final result, what is important is notion that the internet is no longer an esoteric or uniquely American system, and that its importance both in domestic popular culture and as a revolutionary technology on the global level cannot be understated.