Internet Access as a Human Right: Symbolism and Scope of Protection

A chapter that proposes to address the Internet as a human right and its conflict with the need for security against terrorism could not be fully developed without referring to the immensely relevant report presented by the United Nation’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, on the U.N. General’s Assembly of 16 May 2011. In this document, La Rue[1] stated:

Unlike any other medium, the Internet enables individuals to seek, receive and impart information and ideas of all kinds instantaneously and inexpensively across national borders. By vastly expanding the capacity of individuals to enjoy their right to freedom of opinion and expression, which is an ‘enabler’ of other human rights, the Internet boosts economic, social and political development, and contributes to the progress of humankind as a whole.

No one would ever discuss the importance of Internet access in the everyday life of the 21s' century, since it is present in almost every aspect of society, from public services to elections. The generality of this common sense statement may produce an almost automatic agreement regarding its merit, whilst recognizing that Internet access as a human right does not solve all the issues regarding its restriction. It is relevant to stress, on the other hand, that we also tend to perceive more benefits than downsides in the consideration of a human right to access. The mere vocation of the Internet to be an instrument against absolute government power, as stated by Frosini, could well be considered as a strong argument for considering it a human right. One must remember, though, that if the Internet presents itself as a mechanism that favours putting the government in check, it can also be adapted in order to favour unlimited power and dictatorships. The Internet is a plastic reality and this characteristic must not be forgotten.

As pointed out by De Hert and Kloza, ‘... before such a new right to freely use the Internet is recognised, one should take into account what is already protected and how’. Emphasizing the point, we may refer to the following excerpt of an earlier work of ours:

Therefore, we may say that the Internet has played a major role on strengthening the core value that guides the application of human rights: the human dignity. The act of giving individuals a tool for developing their own ideas and sustaining their opinions without previous filters represents a major role on the recognition of persons as human beings, whose dignity is not any different from any other fellow human.[2]

Hence, the acceptance of Internet access as a human right plays a symbolic role, since it may be an initial approach to trigger proper public policies in order to expand its reach and protect individuals from arbitrary measures, taken both by the government and by private entities, which may exclude one’s individual freedom to be on the Net. However, considering it as a human right attracts the well stablished dogmatic structures conceived by legal scholars in order to define what is protected and what is not. This includes defining its scope of protection, its essential content, the criteria for stablishing proper limitations and the proportionality test.

Approaching the human right’s scope of protection is to identify the facts and situations that are effectively protected by that fundamental position. The delimitation of the right’s scope is something usually done at the same time as the definition of the proper limitations to which it is subject. Thus, defining the scope of protection to the human right of accessing the Internet may lead us to consider that there is a basic safeguard against arbitrary and/or unreasonable restrictions on being part of the Net — that may be enacted both against governments and private entities (such as Internet providers, for example). Moreover, such a consideration also fuels the creation of public policies in order to reduce the huge gap known as “digital divide”. Since there is not a specific text providing the right of access, for it is derived from other human rights (an “implicit” right), the burden of developing its scope must be undertaken with extreme caution and be directed towards its connection with the rights at stake.

It is certain that the usual broad way that human rights are referred to in international treaties has a clear goal of including, abstractly, all individuals. However, this aspect should not lead to an absolute conception of human rights, since such an idea has never been accepted amongst the international community. Take the 1789 Universal Declaration of Rights of Man and of the Citizen, the fourth article of which article already conceived the possibility of limiting (even if exceptionally) human rights by government action:

Art. 4th. Liberty consists of doing anything which does not harm others: thus, the exercise of the natural rights of each man has only those borders which assure other members of the society the enjoyment of these same rights. These borders can be determined only by the law.

Hence, the practical application of broad and generic legal references to human rights reserves innumerable difficulties in establishing its scope of protection and its limits, which should be initially oriented by the aforementioned premise — one cannot conceive any human right position as absolute, since it depends on its concrete interweaving with other fundamental human rights. However, human rights should not have limitations imposed that are so burdensome as to drain out their essential content. From the human rights perspective, limitations are natural, but should follow a proper balance to be construed according to concrete parameters. This is the point at which the proportionality technique gains a proper space in the human rights phenomenon.

As stated by Sweet and Mathews, in a comprehensive study[3] regarding the increase in proportionality adjudication as a global technique regarding human rights, ‘Over the past half-century, most of the world’s most powerful high courts have adopted PA [Proportionality Adjudication] to deal with the most politically salient, and potentially controversial, issues to which they could expect to be exposed.’ According to what has already been stressed in an earlier paper of ours, ‘The proportionality technique has been applied on every major constitutional culture for years, and has in its favour a standardizing effect on the different constitutional cultures’.

Proportionality adjudication consists of a three to four step verification regarding a restriction of a human right, which is strictly scrutinized regarding its form, goal and effects. The growth in the use of this technique as a tool to solve human rights cases may bring with it a threat to the rights themselves, depending on how the instrument is applied - its misuse may weaken human rights, instead of strengthening them.[4] This is why the application of the technique must follow the strict and serious argumentative path described, among other, by Sweet and Mathews:

‘In the paradigmatic situation, PA [Proportionality Adjudication] is triggered once a pri-ma facie case has been made to the effect that a right has been infringed by a government measure. In its fully developed form, the analysis involves four steps, each involving a test. First, in the “legitimacy” stage, the judge confirms that the government is constitutionally-authorized to take such a measure. Put differently, if the purpose of the government’s measure is not a constitutionally legitimate one, then it violates a higher norm (the right being pleaded). The second phase - “suitability” - is devoted to judicial verification that, with respect to the act in question, the means adopted by the government are rationally related to stated policy objectives. The third step - “necessity”- has more bite. The core of necessity analysis is the deployment of a “least-restrictive means” (LRM) test: the judge ensures that the measure does not curtail the right any more than is necessary for the government to achieve its stated goals. PA is a balancing framework: if the government’s measure fails on suitability or necessity, the act is per se disproportionate; it is outweighed by the pleaded right and therefore unconstitutional. The last stage, “balancing in the strict sense,” is also known as “proportionality in the narrow sense.” If the measure under review passes the first three tests, the judge proceeds to balancing stricto senso. In the balancing phase, the judge weighs the benefits of the act - which has already been determined to have been “narrowly tailored,” in American parlance - against the costs incurred by infringement of the right, in order to determine which “constitutional value” shall prevail, in light of the respective importance of the values in tension, given the facts’.

The proportionality technique may not be an infallible way of protecting human rights development, but it tends to be a criterion to be used globally in order to accommodate the different perspectives regarding such an intricate matter. Its application, though, should not be the end, but the mere beginning of the argument. This is due to the fact that the steps inherent to the proportionality adjudication are not strict rules, but broad argumentative paths to be filled with meaning by an appropriate reasoning. With these premises in mind we may now stablish a proper approach to the main theme itself — Internet access and suitable restrictions to this right when confronted with terrorism.

  • [1] 2 Tommaso Edoardo Frosini, ‘L’accesso a Internet quale diritto fondamentale’, in Pollicino, Berto-lini et al. (org.), Internet: regale e tutela dei diritti fondamentali (Milan: Università Commerciale Luigi Bocconi, 2013) 36-42. 3 P. De Hert and D. Kloza, ‘Internet (Access) as a New Fundamental Right. Inflating the Current Rights Framework?’ (2012) European Journal of Law and Technology, Vol. 3, No. 3.
  • [2] Claudio de Oliveira Santos Colnago, ‘Freedom of Expression and Internet: Should Judges Apply a Preferred Position Doctrine to Cases Involving the Internet?’ Paper presented on the IX World Congress of Constitutional Law, Oslo, Norway, 16-20 June 2014. Available at http://www. jus.uio.no/english/research/news-and-events/events/conferences/2014/wccl-cmdc/wccl/papers/ws8/ w8-colnago.pdf. 2 From a global perspective, by the end of 2018 around 40 percent of the world’s population was online. One of the world’s challenges is to turn Internet access “universal”, accessible to basically anyone. Available at http://www.internetlivestats.com/internet-users/.
  • [3] lsAlec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) Faculty Scholarship Serie, Paper 14 http://digitalcommons.law.yale.edu/fss_papers/14. 2 Claudio de Oliveira Santos Colnago (2014), ‘The Right to be Forgotten and the Duty to Implement Oblivion: A Challenge to Both “Old” and “New” Media’, Paper presented on the IX World Congress of Constitutional Law, Oslo, Norway, 16-20 June, available at https://www.jus.uio.no/english/ research/news-and-events/events/conferences/2014/wccl-cmdc/wccl/papers/ws 14/w 14-colnago.pdf. As noted by Bernhard Schlink, ‘Constitutional cultures with a doctrinal tradition will progressively be transformed in the direction of a culture of case law. The often-praised asset of proportionality analysis is its flexibility; from case to case, facts may be assessed differently and rights and interests weighed and balanced differently. The case-specific configuration of facts, interests and rights becomes more important and more significant than the doctrine that surrounds the case. Judges become more interested in finding the proportional solution for the case than in a decision that fits into established doctrine or helps to modify and refine it. On the other hand, the principle of proportionality has a certain structuring quality and potency that introduces a minimal doctrinal element into constitutional cultures with a case-law tradition’. (Bernhard Schlink, ‘Proportionality in Constitutional Law: Why Everywhere but Here?’ (2012) Duke Journal of Comparative & International Law, Vol. 22. Available at http://scholarship. law.duke.edu/ cgi/viewcontent.cgi?article=1290&context=djcil).
  • [4] In Brazil, for example, the misuse of proportionality has led to a situation in which freedom of expression is in practice a weaker right than the protection of privacy (Claudio de Oliveira Santos Colnago, ‘Freedom of Expression and Internet: Should Judges Apply a Preferred Position Doctrine to Cases Involving the Internet?’, Paper presented on the IX World Congress of Constitutional Law, Oslo, Norway, 16-20 June 2014. Available at http://www.jus.uio.no/english/research/news-and-events /events/conferences/2014/wccl-cmdc/wcd/papers/ws8/w8-colnago.pdf). 2 Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’, (2008) Faculty Scholarship Series, Paper 14, available at http://digitalcommons.law.yale.edu/fss _papers/14.
 
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