IS INTERNET ACCESS A HUMAN RIGHT? - Наукові конференції
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Рік заснування видання - 2014

IS INTERNET ACCESS A HUMAN RIGHT?

24.06.2019 21:56

[Секція 8. Інтелектуальна власність та його захист. Інформаційне право]

Автор: Arkhipova Kateryna, student of The Yaroslav Mudryi National Law University 5th year of study. 2nd group


Today the Internet is a part of the life of every person around the world. Thanks to the global network, many new opportunities for getting information are opened up to humanity. The development of the Internet raised the issue of legal regulation of relations, arising between Internet users, as well as between them and the state. Today we are in the transition period of evolution the latest technology, when the relevant legal mechanism only begins to emerge, but the need for it is felt every day more acutely. It should be noted that scientists from many countries in recent years trying to analyze the legal aspects of the functioning of the Internet, but it is necessary to state the obvious lack of legal provision of relations in the global network. Therefore, in my work I want to understand why are there difficulties in recognizing the right of access to the Internet in the constitutional law of a number of different countries.

Internet access is a human right

It should be said that there is no strict international legal norm guaranteeing Internet access at the international level. However, some acts on which it is possible to form an idea about the attitude of the international community to the recognition and consolidation of the right of access to the Internet, still exist. The United Nations recognized the right to access the Internet as one of the inalienable human rights. This UN position is reflected in the Human Rights Council resolution of 5 July 2012 on the right to freedom of expression on the Internet. The draft resolution was proposed by Sweden. The resolution urges for all states: «to promote and facilitate access to the Internet and international cooperation in developing media and information and communications facilities in all countries». In the practice of the European Court of Human Rights, the issue of the Internet access has become the subject of a separate study back in 2012. In the ECHR case Ahmet Yildirim v. Turkey (3111/10) stated that «the right of unimpeded access to the Internet should also be recognized».

The «fate» of the right to access the Internet depends largely on the system of government and the ruling authorities. For example, back in 2010, the BBC, a British television and radio company, conducted and published a study, the results of which showed that four out of five adults attribute the Internet to fundamental human rights . Joint declaration on freedom of expression and the Internet adopted in 2011 jointly by the United Nations, the OSCE, the Organization of American States and The African Commission on Human and Peoples' Rights directly proclaims the right of access to the Internet and the corresponding obligations of states.

The exercise of the right to freedom of expression requires states to promote universal Internet access. Internet access is also needed to ensure the observance of other rights, such as the right to education, health and labor, freedom of assembly and association.Restriction of access to the Internet or to any part of it for the entire population, or for certain segments of it (turning off the Internet) cannot be justified under any circumstances, even if this occurs due to the need to preserve public order or in the interests of national security. The same applies to the slowdown of operations on the Internet as a whole or in any part of it. The right of access to the Internet is enshrined in the constitutional law of foreign countries: Greece, Nepal, Costa Rica, Estonia, Finland, France, Spain. 

Internet access is not a human right

Ironically, one of the «fathers of the Internet» Vinton Cerf does not find arguments in favor of recognizing the right to access the Internet as a human right. His point is that the Internet is not eternal. This is just a technical tool that allows you to realize other rights. Simply put, without the Internet, the protesters would not have realized the right to assembly, but if you block the Internet, it is not a violation of the right to access the Internet, but a violation of the right to assembly and the right to freedom of speech. Vint Cerf gave the following example. Once upon a time it was difficult for a person to live without a horse, and it would be natural to offer everyone the basic right to a horse.  However, it was something not in horses, but in the right to a decent life and life in general. And the realization of the right to a horse in a few hundred years would look strange.

A striking example of the totalitarian control of Internet space, in the territory of a certain state, should be considered an example of the People's Republic of China. If we investigate a more critically this topic, we can safely note that the Internet in China is blocked almost since its inception. No wonder the Global Network in China is considered to be one of the most closed in the world. The Great Firewall of China (GFW) which is also called the «Gold Shield» works in this country. This system implies a network of filters operating on the side of providers that restrict access to user content. Blocking sites is based on the «blacklist», as well as the keywords.

In addition, the country has forbidden access to a number of popular web-services and online media. Among them are Facebook, Twitter, Gmail (blocked at the end of 2014), periodically blocked «Wikipedia» – both the whole encyclopedia and some of its pages. Also there is no access to CNN, New York Times and to other news projects. Attracts attention the fact that the blocking of the Internet in China does not apply to Hong Kong, Taiwan and Macao. State power explains this kind of blockade by the need for security and state sovereignty. At the same time, blocking access to information in the modern world is a violation of human rights. According to art. 19 of the Universal Declaration of Human Rights, a person has the right «to seek, receive and impart information and ideas through any media and regardless of frontiers». Therefore, the establishment of such restrictions should be considered inadmissible in the modern world.

We can draw the following conclusions. The constitutional right to access the Internet is a complex constitutional right arising from freedom of expression and the right of access to information. Access to information on the Internet is a special case of such access. However, in my opinion, securing the right of access to the Internet as an independent right is necessary since access to the Internet is a prerequisite for the realization of other constitutional rights and freedoms of citizens.

Today, the most active position in the matter of limiting access to the Internet is exclusively taken by countries where there are to varying degree restrictions freedom of speech. Moreover, it is important not only to enshrine right to Internet access, but also to provide for the obligations of the states with respect to its observance, as well as mechanisms of protection, in particular, by applying to the European Court of Human Rights. By securing the constitutional right to access the Internet, the legislator assumes the relevant obligations not to hinder such access, including to certain sites, as well as, possibly, positive obligations to provide Internet access on a non-discriminatory basis to all citizens, including the poor and those living in remote areas. 

Although I cannot disagree with the Austrian researcher Matthias Kittiman, who offers to measure access to the Internet in two ways: physical access to the Internet (connection) and access to unlimited information online. Moreover, the scientist considers the latter (access to unlimited information online) to be protected by international law as a human right, especially the right to freedom of expression, which limits censorship. And the first, in his opinion, is related to bridging the «digital divide» between those who have access and those who do not, but are connected with other human rights as a condition for their realization.

And it should also be remembered that the right of free access to the Internet, unfortunately, does not guarantee users the absence of illegal content. Among other things, illegal content on the Internet appears to be nothing more than a violation of a whole range of human rights (and not only children), primarily the right to privacy, the right to protect the honor and dignity of the individual. Therefore, it is time to talk not only about the right of access to information on the Internet, but also about the right to restrict access to harmful information. However, these restrictions must be provided by law and meet the criteria for the legality of the restriction of constitutional rights and freedoms.



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