Stephanie Borg Psaila   10 Jun 2011   Internet Governance

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Dozens of online journals this week trumpeted the news of a fresh report (Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression) by the United Nations Human Rights Council.

The ‘scoop’ headlines read ‘UN declares Internet access a human right’, ‘Internet access is a human right, United Nations report declares Internet access a human right’, and variations of the same theme with the words ‘Internet access’ ‘United Nations’ and ‘human rights’ juxtaposed in the same heading.

But critical as I am of the way developments in this field are described in the media (and of course, being a close follower of such developments), I questioned these headings: did the UN really make this declaration?

For starters, nowhere does the Report state, in black and white, that Internet access is – or is now being considered – a human right.

What the Report does say, however, is that the Internet is a catalyst for the enjoyment of human rights, most notably, the right to freedom of expression. The salient points:

-          There are two facets to the Internet. The first concerns access to online content, with only a few permitted restrictions. The second concerns the availability of the necessary infrastructure and ICTs to be able to access the Internet.

-          The Internet has become ‘a key means’ by which individuals can exercise their right to freedom of opinion and expression, as stated in Art. 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

-          The Special Rapporteur confirms that Art. 19 ‘was drafted with foresight to include and to accommodate future technological developments through which individuals can exercise their right to freedom of expression’.

-          The right to freedom of opinion and expression is not only a fundamental right of its own accord but is also ‘an “enabler” of other rights, including economic, social and cultural rights’, such as the right to education and the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications, as well as civil and political rights, such as the rights to freedom of association and assembly’.

-          By acting as ‘a catalyst’ for individuals to exercise their right to freedom of opinion and expression, the Internet also facilitates the realisation of other human rights.

-          All states, therefore, have a positive obligation ‘to promote or to facilitate’ [note the words used] the enjoyment of the right to freedom of expression and the means necessary to exercise right, which therefore includes the Internet, by adopting ‘effective and concrete policies and strategies… to make the Internet widely available, accessible and affordable to all.’

-          The Report also states that ‘the Internet, as a medium by which the  right to freedom of expression can be exercised, can only serve its purpose if States assume  their commitment to develop effective policies to attain universal access to the Internet.’ And ‘given that the Internet has become an indispensable tool for realizing a range of human rights… ensuring universal access to the Internet should be a priority for all States’ [note: ‘a priority’].

Therefore, the fact that the Special Rapporteur confirms that Art.19 includes the Internet as a medium through which we can enjoy  freedom of expression does mean, in practice, that any restrictions (except those provided by law and are necessary) constitute a violation of such freedoms.

However, we must be careful not to automatically extend the term ‘a key means’ or ‘a catalyst’ to mean that Internet access is now a human right. Whether it should be declared a human right, or whether it’s premature, keeping in mind the state of affairs in developing countries, for example, is another issue. (‘The Special Rapporteur is acutely aware that universal access to the Internet for all individuals worldwide cannot be achieved instantly.’)

Rather, one must give weight and special consideration to the call made by the Special Rapporteur onto every state, to ensure that universal access to the Internet is given priority.

The Report refers to particular events that have prompted a more focused discussion on human rights and Internet access. However, the strong call made by the Special Rapporteur serves as a wake-up call for every country, whether developed or developing. The added value of this Report, in fact, is that it refers to all states in general: whether Internet penetration is still low due to the lack of technological availability, slower Internet connections, and higher costs of Internet access, or whether the infrastructure has been developed but marginalised groups are still struggling to overcome access barriers.

Comments

  • Profile picture for user Stephanie Borg Psaila
    Stephanie Borg…, 08/08/2020 - 14:55

    Update: Over 40 countries have endorsed the Freedom of Expression on the Internet Cross-Regional Statement. The statement was presented by the Swedish Ambassador in Geneva during the 17th Session of the Human Rights Council (10 June). The full text is available at http://www.regeringen.se/sb/d/14186/a/170565
  • Salanieta Tama… (not verified), 08/08/2020 - 14:55

    The sensationalism by the media in relation to the UN Special Rapporteur's Report to the Human Rights Council is in my view misleading. I agree with you Stephanie and would like to add the following:- There are generally accepted principles that the right to freedom of expression can be curtailed in certain instances. Frank La Rue (Special Rapporteur) also understands this and advises and the Report states in page 8 of the Report that any limitation to the right of freedom of expression must pass a three-part cumulative test (excerpt from Report are highlighted in bold):- (a) It must be provided by law, which is clear and accessible to everyone (principles of predictability and transparency); and (b) It must pursue one of the purposes set out in article 19, paragraph 3, of the Covenant, namely (i) to protect the rights or reputations of others, or (ii) to protect national security or of public order, or of public health or morals (principle of legitimacy); and (c) It must be proven as necessary and the least restrictive means required to achieve the purported aim (principles of necessity and proportionality). Moreover, any legislation restricting the right to freedom of expression must be applied by a body which is independent of any political, commercial, or other unwarranted influences in a manner that is neither arbitrary nor discriminatory, and with adequate safeguards against abuse, including the possibility of challenge and remedy against its abusive application. 25. As such, legitimate types of information which may be restricted include child pornography (to protect the rights of children),8 hate speech (to protect the rights of affected communities),9 defamation (to protect the rights and reputation of others against unwarranted attacks), direct and public incitement to commit genocide (to protect the rights of others),10 and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).
  • In reply to by Salanieta Tama… (not verified)

    Profile picture for user Stephanie Borg Psaila
    Stephanie Borg…, 08/08/2020 - 14:55

    Thank you for the comments Sala, and for highlighting the three-part cumulative test which the Special Rapporteur refers to. Two points worth noting: (1) The instances referred to in the test are the only instances where freedom of expression may be limited, according to the Special Rapporteur's report, in line with Art. 19; (2) The test is 'cumulative': each part is in addition to the other, and is not an either/or.
  • Profile picture for user Stephanie Borg Psaila
    Stephanie Borg…, 08/08/2020 - 14:55

    Agree about standards. Social networking may indeed be the main tool which is driving this forward. With regards to access being declared a human right, I believe it's just a case of 'when' rather than 'if'.
  • Jonathan (not verified), 08/08/2020 - 14:55

    Twitter and other social networking activities are part of modern day life, this will not change now. Many businesses are now embracing that level of communication with their customers and local community. Social Networking is very young and and evolving technology - these are fast moving times and those that embrace the technology will help to steer the way the industry moves - influencers are needed and standards will evolve.
  • Data Center Space (not verified), 08/08/2020 - 14:55

    Internet access can been seen more important than newspapers, books and journals as information on the internet is time relevant, especially with social networking sites. We still have to police this carefully, but this is all part of the evolvement of media communications and should be applauded.
  • Olita Tupou (not verified), 08/08/2020 - 14:55

    Thank you for this analysis and summary which gives a better understanding of the issue - If the UN declare Internet access as a HR, is it motivated to transform our world and achieve some of the SDG Global Agenda for 2030?. Internet as a tool, an enabler, a technology, a platform to enrich people's lives ((improved healthcare, education, climate change mitigation, etc), is an incentive to expedite the sustainable development worldwide - ushering inclusive growth and benefits. Although not legal binding - it prompts for nations to make the access to the Internet an absolute priority and human right.

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