Have you ever come across articles or reports that state that the Internet has been declared a right in a number of countries? I’ve come across scores, citing Finland, Estonia, France, Spain, Greece, Costa Rica, and the European Union, without however citing the laws that have actually proclaimed these rights.
In an attempt to verify whether the proclaimed rights became entrenched in any Constitution, or whether any other law stipulated – in black on white – that Internet access was a citizen’s legal right, the following (in chronological order) are the results of my research into these countries’ legislative frameworks and court decisions:
In February 2000, the Estonian Riigikogu (Parliament) enacted the new Telecommunications Act, adding Internet access to its universal service list:
Article 5. 'The set of telecommunications services specified in subsection (1) of this section comprises:
2) Internet service which universally available to all subscribers regardless of their geographical location, at a uniform price.'
This 2007 interview with Estonian former prime minister Mart Laar, on Spiegel Online, describes how all four corners of the country became connected through a robust infrastructure. This blog post (three years later, in June 2010) confirms that wireless coverage – mostly free of charge – reached enviable extents, and explains how the Tiigrihüpe (or Tiger Leap) project helped in the expansion of the network infrastructure in the country.
A year later, Greece amended its Constitution with the introduction of, among other provisions, Article 5A and in particular its second paragraph:
'2. All persons have the right to participate in the Information Society. Facilitation of access to electronically transmitted information, as well as of the production, exchange and diffusion thereof, constitutes an obligation of the State, always in observance of the guarantees of articles 9, 9A and 19.'
The Resolution of 6 April 2001 (G) is in Volume 1 (Constitutional Law) on the E-Themis Online Legislation Portal. It was published in Gazette A/17.4.2001 84.
3. European Union
In the European Union, on 25 November 2009, after two years of legislative drafting, Directive 2009/136/EC of the European Parliament and Council entered into force. Among other directives, the 2009 Directive amended Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services.
The amendment replaced Article 4 of the 2002 Directive, part of which reads:
'Provision of access at a fixed location and provision of telephone services
1. Member States shall ensure that all reasonable requests for connection at a fixed location to a public communications network are met by at least one undertaking.
2. The connection provided shall be capable of supporting voice, facsimile and data communications at data rates that are sufficient to permit functional Internet access, taking into account prevailing technologies used by the majority of subscribers and technological feasibility...'
EU member states are obliged to transpose the Directive to national law by 25 May 2011. Meanwhile, on 2 March 2010, the European Commission launched a public consultation (which ended on 7 May 2010 after receiving a substantial amount of responses), to analyse whether the universal service obligations should be extended to broadband access. A few days later, the European Commission launched the Digital Agenda for Europe action plan, whereby one of the targets is to ‘Ensure that by 2020 all Europeans can have access to much faster internet, as set out in the EU targets. In 2010 The European Commission will present a communication on broadband which will lay out a common framework for actions at EU and Member State level...’ The 2010 communication (COM(2010) 472) is available here.
In France, on 10 June 2009, the Conseil Constitutionnel (Constitutional Council) declared that (Article 12 of the decision): ‘given the generalized development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions’, the free communication of ideas and opinions enshrined in the Declaration of the Rights of Man and the Citizen of 1789 implied freedom to access such services.
The Constitutional Council also said the law breached privacy by enabling the Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet (HADOPI) to track people’s internet activity.
The decision was in reference to the HADOPI law, or the infamous ‘three strikes’ law. The June 2009 decision was an embarrassing blow, which had rendered the HADOPI law toothless.
A few months later, however, a revised version of the HADOPI law was approved by the Constitutional Council (see Articles 16-25). The revision allowed the revocation of a person’s Internet access for a maximum period of one year (L335-7) which however could only be imposed after judicial review (L335-7-2).
Finland followed suit last year when it declared broadband access a basic right in Finland. The right was proclaimed via an amendment in the Communications Market Act, which stated that universal service also included a functional Internet connection. This meant that as from the beginning of July 2010, the telecom operators that are ‘defined as universal service providers must be able to provide every permanent residence and business office with access to a reasonably priced and high-quality connection with a downstream rate of at least 1 Mbit/s.’
The relevant provision is Section 60 C of the Communications Market Act, and the responsibility of designating operators as universal service operators falls is that of the Finish Telecommunications Regulatory Authority (FICORA). This target of making a connection available throughout the country was reached in 2010.
6. Costa Rica
In Costa Rica, the Sala Constitucional (Constitutional Court) decided on 30 July 2010 that the government’s delay in opening the telecoms market to competition was tantamount to a breach of fundamental freedoms:
‘Based on the foregoing, the Constitutional Court concludes that the delay in opening verified telecommunications market has not only violated the right enshrined in Article 41 of the Constitution but also has affected the exercise and enjoyment of other fundamental rights such as freedom of choice of consumers as enshrined in Article 46, paragraph in fine constitutional right of access to new information technologies, the right to equality and the eradication of the digital divide (info-exclusion )-Article 33 of the Constitution-the right to access the internet through the interface that the user or consumer choice and free enterprise and trade.’ (Translated using Google’s Translation Service. Anyone able to provide a better translation of paragraph 5 of the Judges’ Considerations in the original Judgment No 10-13141-0007-C, 2010-1279 is welcome to post under Comments).
In a press release on 8 September 2010, Teofilo de la Torre, Costa Rican Minister of Environment and Telecommunications, said the judgment would oblige the government to revise the national plans of telecoms development, since there is currently no obligation to provide for universal access of the service.
In Spain, the decision came last month when Act 2/11 of March 4, Sustainable Economy added broadband access to its universal service, and stipulated that broadband connection at a speed of 1Mbit per second is to be provided through any technology. The measure, in Article 52, also states that the conditions of broadband access to the public are to be established by royal decree within four months from entry into force of this Act.
The Spanish Minister of Industry, Trade and Tourism, Miguel Sebastián, had announced the measures in November 2009 at the opening of the Forum Internacional de Contenidos Digitales (FICOD), stating that broadband would become a universal access as of 2011, meaning that Spanish citizens would be ‘entitled to connect to the Internet via broadband at minimum speeds of a megabit per second.’