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The Emerging Right: Recent United Nation HRC's Resolution on Access to Internet, 27th June 2016

 

 

By: Ameneh Dehshiri

PhD on Internet and Human Rights

 

 what is what? 

When the Universal Declaration of Human Rights was drafted in 1948, there could have been no anticipation of the changes that global Internet networks could bring to human life around 60 years later. The internet has a wide range of increasing applications, encompassing business, transportation, health care, education, culture, media, governance, science, social life, personal identity, plays, and research amongst others.

Internet was perhaps originally designed to be an open communications medium. However, in reality, governments have started to increase their control over cyberspace. Governments the whole world over have demonstrated an increasing willingness to intervene with users' communications on the Internet.  

Clear recognition of the right to access the Internet can raise awareness at the international level of the illegality of many limitations imposed on connection and online content.  It would serve as a useful tool for citizens in relation with State authorities to challenge their government on grounds of displaying unlawful conduct and adopting policy decisions.

History Of Regarding Access To The Internet As A Right

The history of regarding access to the Internet as a right dates back to over a decade for a number of countries. In Estonia, for instance, access to the Internet was not considered as a right until the turn of the millennium in 2000.[1] Following that, in Finland,[2] Greece[3] and Spain[4] the right of citizens to Internet access has been recognized, as well. In 2009, the French constitutional court indicated that restricting access to the Internet without a judicial decision constitutes a violation of fundamental human rights.[5]

From 2011 onward, the international community has started to react to these limitations by taking some actions and issuing documents.  In May 2011, UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, delivered a report to the UN General Assembly on the importance of access to the Internet as a human rights issue.[6] Following this report, the United Nation Human Rights Council (UNHRC) in June 2012 released the resolution of “the promotion, protection and enjoyment of human rights on the Internet”.[7]

 

In July 2011, the new General Comment (No. 34) replaces the Committee’s earlier General Comment (No. 10) on Article 19 of International Convention on Civil and Political Rights(ICCPR),  which was adopted in 1983 and did not anticipate the current reality of a globalised communications environment dominated by Internet-based technologies.[8]

Finally in June 2016 UNHRC issued a resolution on “The promotion, protection and enjoyment of human rights on Internet.” The resolution expressly affirms:

“The importance of applying a comprehensive human rights-based approach in providing and in expanding access to Internet and requests all States to make efforts to bridge the many forms of digital divides.”

 

 

The Neglected Area

The neglected area in the field of “right to access to Internet,” deserving far more attention is the concept of “access” itself. The first question to address is how the concept of “access” is to be defined.

 

Regarding the fact that the concept of “access to the Internet” could have a wide range of definitions and applications in debates surrounding human rights and the claims made therein.  The concept of access can covers:

 

(1) Access to online content and platforms; (2) Having connection to Internet as the global net; and (3) Minimum level of access to Internet.

 

(1) access to online content and platforms

Right to access to internet guarantees protection form arbitrary restrictions on online content. Under this right it would be prohibited to prohibit,  block, interfere, discriminate, throttle, and the restrict of the right of any user  to use, send, receive or offer any lawful content, application or service through the Internet, as well as any other type of lawful activity on or use of the web.

The restriction of content on the Internet can take various forms and techniques, such as; blocking or suspension of entire websites, platforms, channels, IP addresses, domain name extensions, ports, network protocols, or any other kind of application, as well as measures intended to eliminate links, information and websites from the servers on which they are stored. What is common between all of these measures is to prevent certain content from reaching an end user.

Restrictions on online According to article 19 of ICCPR the blocking and filtering shall be “provided by law.”[9] Before any blocking and filtering, illegal content must be fully and clearly identified.  According to Article 19 (3) Restriction on online content is admissible only for the protection of:

a) The rights or reputations of others;

 b) For the protection of national security or of public order or of public health or morals.

 

UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has been used the Article 19(3) criteria and listed some important instances of legitimate types of content which may be restricted: [10]

“child pornography (to protect the rights of children),[11] hate speech (to protect the rights of affected communities),[12]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),[13] 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).[14]

Even under  mentioned cases filtering or blocking should be designed and applied  in a way that exclusively impact the illegal content without affecting other content.[15] Transparency about the content which is the subject of removing order can consider as a safeguards to prevent further abuses.

 

Also “any determination on what content should be blocked must be undertaken by a competent judicial authority or a body which is independent of any political, commercial, or other unwarranted influences”[16]. It is in contrary with the use of blocking and filtering methods as an ex ante measure based on forecasts as a prior censorship[17].

 

The blocking and filtering might be applied constantly or only in a particular time. “Just in time” blocking prevents users from accessing or disseminating information at key political moments, such as elections, times of social unrest, or anniversaries of politically or historically significant events. During such times, websites of opposition parties, independent media, and social networking platforms such as Twitter and Facebook are blocked[18].

 

 

 

Under right to access to internet, foreign and domestic content are treating alike. As a result, this right protects individuals’ access to content crossing borders via internet. Access to cross boarding content can be restricted trough automatic filtering at gateway points, as well as laws that require intermediaries to control and block specific content, or even economic policies that support national internet services providers and make “domestic content easier and less expensive to access than foreign”[19] investing in access points that are “tied to special internet connections, which limit access only to resources found in the national internet domain”[20]. Even some states actively use ‘internet-media-communication’ campaigns to populate locally available sites containing approved information[21]. These activities disproportionately burden foreign content violating right to access to internet.

Conditions for lawful interference of State s on right to access to internet are discussed below

 (2) Having connection to Internet as the global net

 

The second aspect of the substantive scope of application of the right to access to internet relates to protecting individuals from measures which deprive them form connecting to internet as a global network. Access to the global internet connection could be restricted by governments in two different scales:

 

  1.  The nationwide, collective limitations on the connection to the internet:   Different policies and techniques would apply to control connection to WWW,  such as; “Internet cut off”, establish a “national isolated Internet“,Throttling the speed of Internet,
  2. denying  internet connection of specific individuals: in some countries individual people might also be denied access to or disconnected from the Internet. In this case, disconnection could result in violation of intellectual property rights or act as a preventive measure aimed at stopping offenders from re-offending different kind of crimes.[22]

 

Some scholars, such as the UN Special Rapporteur, indicate regardless of the justification provided, cutting off users from Internet access is disproportionate. 

 

 (3) Minimum level of access to Internet.

 

The third and final element involved by the substantive scope of application of the right to access to internet relates to the ensuring a minimum level of access to the technologies of connection. This element has been drawn from international human rights law governing resource rights (such as right to water, right to food, right to medicine). Sates have a core obligation to ensure the satisfaction of minimum essential levels of each of these rights.[23] Nowak in his monumental CCPR Commentary points out “with regard to electronic media, they [State s] must above all provide for adequate public access.”[24]

Special Rapporteurs of international governmental organizations in their joint declaration emphasized that “State s are under a positive obligation to facilitate universal access to the internet” and should take different measures to fulfill it.[25] This element can be studied under three dimensions of availability, accessibility and affordability. (They will be discussed further)

The proposed article of right to access to internet:

Based on the previous  arguments on the clarification of the concept of access, and with regard to the style in which human rights provisions in human rights treaties are formulated, the full articulation of the right to access to Internet could read as following:

                                                                                      

- Everyone has the right to access to Internet.  The access refers to both access to content and access to connection.

- No restrictions on the exercise of this right are allowed other than such as are in accordance with domestic law and are necessary in a democratic society in protection of national security or of public order (order public), or of public health or morals or for the protection of the rights and freedoms of others.

-  The State should not impose blanket prohibitions on access to the Internet



[1] ‘Constitution of the Republic of Estonia’ (President, 28 June 1992) a href="https://president.ee/en/republic-of-estonia/the-constitution/index.html%3E">https://president.ee/en/republic-of-estonia/the-constitution/index....; accessed 4 September 2015, Article 44.

[2] Harri Pursiainen, ‘Making Broadband Available to Everyone  The National Plan of Action to Improve the  Infrastructure of the Information Society’ (Finish Ministry of Transpor t and Communications 2008) a href="http://www.lvm.fi/c/document_library/get_file?folderId=57092&name=DLFE-4311.pdf&title=Making%20broadband%20available%20to%20everyone.%20The%20national%20plan%20of%20action%20to%20improve%20the%20infrastructure%20of%20the%20information%20society%20%28LVM50/2008%29%3E">http://www.lvm.fi/c/document_library/get_file?folderId=57092&na...;.

[3] ‘The Constitution of Greece’ (1975) a href="http://www.hri.org/docs/syntagma/%3E">http://www.hri.org/docs/syntagma/>; accessed 5 September 2015, Article 5A.

[4] ‘Spain’s Sustainable Economy Law’ (2011) a href="http://www.iea.org/policiesandmeasures/pams/spain/name-24697-en.php%3E">http://www.iea.org/policiesandmeasures/pams/spain/name-24697-en.php...; accessed 5 September 2015, Article 52.

[5] Aurélie CAPPELLO, ‘Retour Sur La Jurisprudence Du Conseil Constitutionnel Relative Aux Sanctions Administratives: Décision Du 10 Juin 2009 N° 2009-580-DC’ [2010] Revue de science criminelle et de droit pénal comparé 415.

[6] La Rue (n 10).

[7] Human Rights Council, The promotion, protection and enjoyment of human rights on the Internet 2012 [A/HRC/20/L.13].

[8] Human Rights Committee General comment No. 34  on Article 19: Freedoms of opinion and expression (n 417).

[9] ‘International Covenant on Civil and Political Rights’ (n 237) Article 19 (3).

[10] La Rue (n 10) 25.

‘International Covenant on Civil and Political Rights’ (n 9) Article 19 (3).

[11] Optional Protocol to the Convention on the Rights of the Child on the sale of children, child

prostitution and child pornography, art. 3, para. 1(c).

[12] Faurisson v. France, United Nations Human Rights Committee, communication

550/1993, views of 8 November 1996. The issue of hate speech has also been addressed in previous

reports, see inter alia E/CN.4/1999/64; E/CN.4/2000/63; E/CN.4/2002/75; and A/HRC/4/27.

 

[13] See for example article 3(c) of the Convention on the Prevention and Punishment of the Crime of

Genocide.

[14] See for example article 20, paragraph 2, of the International Covenant on Civil and Political Rights.

[15] La Rue (n 10).

[16] ibid 70.

[17] International Mechanisms for Promoting Freedom of Expression, Joint Declaration on Freedom of Expression and the Internet, (n 403) Point 3(b); La Rue (n 10); Marino (n 421) 88.

[18] See Kelly, and others (n 78); House (n 147).

[19] See Ronald Deibert and Rafal Rohozinski, ‘Contesting Cyberspace and the Coming Crisis of Authority’ in John Palfrey and Jonathan Zittrain (eds), Access Contested: Security, Identity, and Resistance in Asian Cyberspace (MIT Press 2011) 36; Land (n 12).

[20] Deibert and Rohozinski (n 625) 27.

[21] Dwayne Winseck, ‘Big New Global Threat to the Internet or Paper Tiger?: The ITU and Global Internet Regulation, Part I | Mediamorphis’ (Mediamorphis, 10 June 2012) a href="https://dwmw.wordpress.com/2012/06/10/big-new-global-threat-to-the-internet-or-paper-tiger-the-itu-and-global-internet-regulation-part-i/%3E">https://dwmw.wordpress.com/2012/06/10/big-new-global-threat-to-the-...; accessed 18 June 2015.

[22] See Giblin (n 181); Alisdair A Gillespie, ‘Restricting Access to the Internet by Sex Offenders’ (2011) 19 International Journal of Law and Information Technology 165.

[23] Committee on Economic, Social and Cultural Rights, General Comment No. 3: The nature of States parties’ obligations 1990 [U.N. Doc. E/1991/23] para 10.

[24] Nowak (n 477) 344.

[25] International Mechanisms for Promoting Freedom of Expression, Joint Declaration on Freedom of Expression and the Internet, (n 403) Point 6(e).

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