United Kingdom Journals

Internet (access) as a new fundamental right. Inflating the current rights framework?

Paul De Hert [1] and Dariusz Kloza [2]

Cite as: De Hert, P., Kloza, D., 'Internet (access) as a new fundamental right. Inflating the current rights framework?', European Journal of Law and Technology, Vol. 3. No. 3, 2012

Abstract

The debate on the possible recognition of the use of the Internet as a human right matures. This paper, first, overviews arguments in favour and against the recognition of such a right. It then analyses how existing human rights, in particular the freedom of expression, function as legal tools to shield the content and connectivity of the Internet against unlawful interference. Next it turns to the doctrine of positive state obligations and the doctrine of human rights as living instruments. Both can be invoked to make existing rights protect content and to ensure connectivity. The example of the European Union's Universal Service Directive illustrates the importance of legal sources other than those taken from the fundamental rights category. This paper concludes that before a new right to the use of the Internet is recognised, one should take into account what is already protected and how. Still, one might argue that more is needed in human rights law than what currently exists.

1. Introduction: Internet protected and the policy agenda

The debate on the fundamental role of the Internet and other information and communications technologies (ICT) for contemporary society intensified in 2011. A BBC poll showed four in five adults regard Internet access as a fundamental right. [3] The Arab Spring, started in December 2010, was intensified by technology. [4] Late 2011 saw in the United States protests against the bills for the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA). [5] In early 2012 followed a European movement against the proposed Anti-Counterfeiting Trade Agreement (ACTA). [6] In May 2011, Frank La Rue, the United Nations (UN) Special Rapporteur on the freedom of expression, explored key trends and challenges to the freedom of expression through the Internet. [7] This report proved to be a turning point in the discussion. [8] Having analysed the impact of the Internet in the contemporary world, in particular on the Arab protests, La Rue concluded 'the Internet has become an indispensable tool for realizing a range of human rights'. [9] He emphasised that there should be as little restriction as possible to the flow of information via the Internet, short of a few exceptions provided for in international human rights law. Further he argues that ensuring universal access to the Internet should be a priority for all states. Taking note of the La Rue report, on 29 June 2012 the UN Human Rights Council adopted a resolution, calling upon states to 'promote and facilitate access to the Internet and international cooperation aimed at the development of media and information and communications facilities in all countries'. [10]

The foregoing points at a growing consensus that the Internet constitutes a value in itself and should therefore receive legal protection. A next step in this development is the plea to give the Internet (or its use) the status of a fundamental right. In this context one can for instance point at the work of the Internet Rights and Principles coalition that has launched its 10 Internet Rights and Principles and currently drafts a Charter of Human Rights and Principles for the Internet. [11] [12] One can also recall Andrew Murray's Bill of Rights for the Internet, proposed in September 2010. [13] Some authors argue for other rights approaches that, when successful, might contribute to the protection of the Internet without explicitly talking about a right to (access) the Internet. For example, De Hert and Prins propose an explicit right to identity to face the developments of technology. [14] Bernal and Andrade further discuss the right to an on-line identity, the latter going beyond the defence of a right to online identity, by advocating a broader conceptualization of a right to personal identity (namely vis-à-vis new technological developments), which encompasses the sub rights of right to multiple identities and right to oblivion. [15]

Policy makers seem to be sensitive to some of these proposals. Brazil considers its own comprehensive legal statute on the Internet governance, including individual rights. [16] At the European policy level, the European Union (EU) Digital Agenda foresees a code (compilation) of the on-line rights summarising existing digital user rights in the EU in a clear and accessible way. [17] In March 2012 the Council of Europe has adopted its Internet Governance strategy for 2012-2015, building further on its 2011 Declaration on Internet Governance Principles and on its 2011 Recommendation on the protection and promotion of the universality, integrity and openness of the Internet. [18] [19] [20] The strategy focuses, amongst others, on 'exploring the possibilities for enhancing access to the Internet to enable the full exercise of rights and freedoms'. [21]

This paper wants to contribute to the discussion whether the use of the Internet is or should be protected by a means of human rights by trying to understand the arguments and also by trying to understand how the Internet is currently protected through human rights, in particular through the freedom of expression. The contribution starts with a brief overview of the main arguments in favour (section 2) and against specific human rights protection for the Internet (section 3). Then we look at existing rights to see how they protect the Internet and how content and connectivity - two core elements of the Internet - fall into the current human rights framework. [22] We argue that freedom of expression protects both content and connectivity against unjustified interference (section 4). Additional protection comes from other human rights, such as the right to privacy (section 5). To better understand the protective force of existing human rights one needs to understand the doctrine of positive human rights obligations (section 6) and the idea of human rights as living legal instruments (section 7). Using European cases such as Jankovskis v. Lithuania we try to understand the consequences of these doctrines when applied to the context of the Internet and its need for protection. We argue that they reinforce the protective power of existing human rights, offering a framework for Internet content and Internet connectivity, although they do not create a sufficient basis to provide connectivity. Existing rights thus do not create an entitlement to be digitally connected? However, as human rights are situated rights, taking shape in certain societies at certain moments of times, in some situations, a failure to provide Internet access could be deemed contrary to the existing human rights law. More is indeed needed: a full enjoyment of the use of the Internet requires also certain proactive measures to ensure a maximum level of connectivity. Consequently, public authorities should take positive measures to ensure universal connectivity. There is a legitimate cause to reform the current human rights framework in order to turn this in a legally binding engagement (section 8). As a conclusion, having attempted to draw a picture of the current state of the art in the human rights protection for the Internet, we argue that this picture should be taken into consideration before any new right is recognised. There is enough, but maybe some more is needed.

2. Arguments in favour of a recognition of the Internet as a human right

There are different modes of regulating and protecting technologies, including powerful non-legal ones. [23] Hence, the case for a fundamental rights approach has to be made strong. One should not call for human rights lightly. But on the other hand, one does equally not need to be too fundamentalist about fundamental or human rights either. These rights are not holly and are far from static. They evolve, simply because they reflect developments in the society, rather than eternal truths or state of beings of human kind. Protecting non-human entities, such as legal persons, animals and, why not, even the climate, is not unthinkable. 'It depends'.

The current system is characterised by the expanding and evolving nature of human rights. The international human rights system has advanced greatly since the Universal Declaration of Human Rights (1948) was first adopted. Since the adoption of the Declaration, the codification process regarding the definition of new rights and new international principles has continued. This expanding nature is still producing ramifications in the 21^st century. With the ever-changing nature of society, human rights face a need for continuous evolution in order to address new challenges. [24] Human rights are situated rights: they take shape in certain societies at certain moments of time. Brownsword and Goodwin argue that in the future, where human rights remain the dominant language for moral reasoning - and there is every reason to expect that they will - technological developments are likely to force the creation of new human rights. To believe these authors, new rights that look to be on the horizon include the right to genetic privacy, the right to a unique identity and also the right to Internet access. [25]

Their 'guess-list' is not unrealistic. [26] The last suggested right by Brownsword and Goodwin would reflect the importance of the Internet for the contemporary world due to the unique nature of the network. The Internet is crucial for today's knowledge-based economy as it fosters competitiveness and innovation. It promotes development and social inclusion. It advances democracy and other human rights. [27] In particular, due to its difference from other types of media, it substantially boosts the freedom of expression. [28] La Rue stresses that the Internet allows for two-way communication, making the end-user not only a passive recipient of information but also an active publisher. Next, it makes possible inexpensive distribution of any type of content, thus making access to information and knowledge that was previously unattainable. Finally, it enables communication in a real time. As a result, the Internet for many people has become an intrinsic part of life. Those who have grown up with the Net - 'digital natives' - they 'use the network for homework and leisure with the same ease as they use a dictionary or a book or the telephone.' [29] Hence, on these grounds, La Rue in his 2011 report advocates for as little content restriction as possible and for access to the Internet to be widely available, accessible and affordable to all segments of population. [30] Murray strikes a similar chord and suggests 'no law shall be made which shall restrict the right of the individual to full and free access to the internet', short of limitations 'in accordance with the Universal Declaration of Human Rights'. [31]

The idea of making Internet (access) a fundamental right is timely because of recent developments towards control and censorship. More than in the recent past, there is a growing need of preserving and maintaining the very nature of the Internet. The success of the Internet is intimately connected to the 'openness' of its architecture, in particular the distributed network and open formats. [32] The Internet was designed without any contemplation of national boundaries. [33] In parallel, there was a romantic concept that the Internet was conceived as an egalitarian and uncontrollable space for exchange of information. [34] (Think of e.g. 1986Hacker Manifesto or John Perry Barlow's 1996 Declaration of the Independence of Cyberspace.) [35] [36]

However, some borders that recently emerged in the cyberspace lawfully and unlawfully restrict the flow of information. [37] According to La Rue, illegitimate restrictions take the form of arbitrary blocking or filtering (cf. paras 29-32), criminalisation of legitimate expression (33-37), (over)imposition of intermediary liability (38-48), disconnecting (including measures like 'three strikes') (49-50), cyber-attacks (51-52) and inadequate protection of privacy and personal data (53-59). [38] [39] Technological progress with regard to the Internet seems to go towards build-in functionalities to control it in an unprecedented way. Sergey Brin, co-founder of Google, claims that threats to the freedom of the Internet, apart from the governments trying to control access and communications, also come from 'the entertainment industry's attempts to crack down on piracy' and 'the rise of 'restrictive' walled gardens such as Facebook and Apple, which tightly control what software can be released on their platforms'. [40] A recently proposed technology of network management (i.e. blocking, prioritizing or degrading of traffic) triggered the debate on network neutrality. [41] Thus it is not surprising that on a regular basis NGOs worldwide publish reports on civil liberties limitations in the cyberspace. [42]

These developments towards control and censorship bring us back to the very first function of human rights, i.e. to shield the individual against the unnecessary use or abuse of power by a state. With control and censorship appearing not only in the East but also in the West, it might not be a surprise to see persons turning to the language of human rights. There is a call for human rights every time a value is threatened. A specific right to protect the Internet creates the appropriate signal of alarm. Such a right, intelligently drafted, could also call for attention of policy makers with regard to the lack of access of many in the world due to cultural and economic reasons. A specific right recognizing universal access will help decrease the 'digital divide' - i.e. the schism between the technological 'haves' and 'have-nots' - both in its geographic dimension (urban versus rural areas and developed versus underdeveloped regions) and also in its social one (digital literacy, access for vulnerable groups or language barriers). [43] [44] When it comes to the geographical divide, the Northern hemisphere accounts for a much higher level of Internet penetration than the Southern hemisphere. [45] While the Scandinavian countries lead in terms of connectivity - Iceland and Norway each have more than 90 per cent of the population with Internet access - a vast number of countries have an Internet penetration less than five per cent and even less than one per cent. [46] La Rue notes that several initiatives already have been taken in an attempt to bridge the digital divide, like the Target 8.F of the Millennium Development Goals (2000) and the Plan of Action adopted at the Geneva World Summit on Information Society (2003). [47] [48] It is well known that these efforts are not enough and therefore one can observe calls for an enforceable (fundamental) right to access the Internet. [49]

On a national level, three jurisdictions already explicitly provided in their constitutional system a positive obligation to ensure connectivity. Art 5a(2) of the Greek Constitution, introduced in 2001, states '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 [privacy], 9A [personal data] and 19 [secrecy of correspondence]' (italics ours). [50] The French Constitutional Court in 2009 declared that the freedom of expression implies 'freedom to access such services', yet rather in a different context (i.e. human rights as living instruments) (see section 7). Also, this time outside Europe, the Constitutional Court of Costa Rica declared in 2010 that, in the context of the information society, 'it is imposed on public authorities for the benefit of the governed to promote and ensure in universal form, access to these new technologies.' [51]

3. Arguments against a recognition of the Internet as a human right

The foregoing voluntaristic pages may not convince all readers. Apart from disbelief in the legal system, also in the West, [52] there are counterarguments against a human rights approach in general and arguments against a human rights approach in this specific case. A first counterargument sees the Internet merely a technology, nothing less but certainly nothing more. In his commentary on the Arab Spring Protester as the 'Person of the Year 2011', TIME's Rick Stengel argues that technology indeed mattered for the Arab protests, but this did not make the Arab Spring a technological revolution. Social networks did not cause these movements, but they kept them alive and connected. DeLong-Bas observes that 'the use of modern technology and new social media has opened the door to new and creative thinking about how to assemble, organize, plan, and strategize activities ranging from political to social change that are immediately conveyed at a global level.' [53] 'This was not a wired revolution; it was a human one, of hearts and minds, the oldest technology of all,' he concludes. [54] Technology is an enabler of rights, not a right itself.

Secondly, there is the argument about what merits a human rights level of protection. Vinton Cerf, co-designer of the Transmission Control Protocol/Internet Protocol (TCP/IP) is sceptical about protecting the Internet access by a means of human rights. [55] There is a high bar for something to be considered a human right, he holds The modern western 'human rights ideal' can be summed up as follows: prima facie everyone has an equal legitimate claim to those tangible and intangible goods and benefits most essential for human well being. [56] In other words, in the classical perspective, these rights are understood basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. [57] To believe Cerf, the things that we call human rights must be among the things humans need in order to lead healthy, meaningful lives, like freedom from torture or freedom of conscience. The Internet is valuable as a means to an end, but not as an end in itself. He concludes with a nice example: 'at one time if you didn't have a horse it was hard to make a living. But the important right in that case was the right to make a living, not the right to a horse'. [58] Cerf is more favourable of protection of Internet access by means of civil rights even though the same argumentation applies. Civil rights are different from human rights because they are conferred upon us by law, not intrinsic to us as human beings. The concept of universal service could serve as an example of protection by means of rights conferred by law (see section 8).

Thirdly there is the argument about human rights inflation in general. To frame this argument, it is useful to remind that calls for a fundamental right status for the Internet are not unique but axiomatic for the wider domain of all human rights. Why, from the formal viewpoint, do people frame interests in terms of human rights? One of the reasons is rhetoric: a claim sounds more practical. Another reason is enforcement: most modern human rights recognized come with some sort of enforcement mechanism, be it hard law (e.g. courts or compliance committees) or soft law (e.g. monitoring). Yet claims for the recognition of new fundamental rights should always be carefully examined. If they are rashly accepted, it could lead to a practice of fragmentation and constant increase of human rights. Paraphrasing Easterbrook, in going too much into detail, one might end up with 'a right to a horse'. [59] Inflation of rights could then diminish the value of other existing rights. Inclusion of new rights in the international human rights framework is only justified if there is a substantial added value to the protection offered by existing rights and when there is a consensus that a high level of protection is strictly necessary. Furthermore, as recognition of any right requires codifying, any codification would bring difficulties to define its scope, to choose the proper generation of a right as well as the correct legal instrument for regulation and - finally - it would risk becoming out-dated. [60]

As an example, the human rights rhetoric has been used to protect the environment as an answer to its progressive degradation. The clean and healthy environment is seen a public good indispensable for the life and welfare of the society as a whole. The extensive case law developed by human rights courts and supervisory bodies at regional and universal levels tends to indicate that an environmental dimension of human rights has been recognized. However, this approach - built on 'individualistic' perspective - seems ill suited to addressing environmental degradation as such and the diffused effects that such degradation has on society as a whole. To remedy that, Francioni argues for 'imaginative and courageous jurisprudence which takes into consideration the collective dimension of human rights affected by environmental degradation'. [61] Yet some international instruments acknowledge this collective dimension and explicitly provide for the right to the environment, yet shaped very differently. [62] As a second example, a distinct right to water and sanitation was recognized by the UN and a handful of international human rights instruments. [63] Although it has been argued that this right could be easily interpreted from the rights to housing and health, there are a few reasons why it merits a separate recognition. First, water and sanitation are primary needs and nowadays still many people suffer from a lack thereof. Second, not all aspects of the access to water and satiation are covered by existing rights, in particular the rights to housing and health. The scope of sanitation goes well beyond prevention of contamination of drinking water supplies and wastewater drainage. It is also about ensuring hygiene and safe water storage. [64] As a third example, as the new rights-holders emerge, sui generis human rights have been provided for persons with disabilities as well as specific rights for elderly people are being debated, as the existing international instruments have failed to address adequately the needs of these people. [65] [66] As a final example here, there is a general trend of NGOs and other stakeholders to continuously demand for the creation of more human rights. Baxi gives the example of interest groups of international airlines, hotels and travel agents who assiduously lobby the UN to proclaim a universal human right of tourism. [67]

One could also think of the new right to data protection in the EU, both in Art 8 of the EU Charter of Fundamental Rights and in Art 16 of the Treaty on the Functioning of the European Union. This recognition can be approved for at least two reasons. First, there were considerations with regard to the legitimacy of the EU data protection framework. The 1995 Data Protection Directive has only an internal market dimension and lacked a fundamental rights justification. [68] With a separate fundamental right for data protection this dimension is added. Second, the existing right to privacy did not suffice. Data protection explicitly protects values that are not at the core of privacy, such as the requirement of fair processing, consent, legitimacy and non-discrimination. Data protection laws serve a multiplicity of interests, which in some cases extend well beyond traditional conceptualisations of privacy. [69] What these examples have in common is that additional prominence and visibility has been given to the subject matter of protection. In result, it is easier and more practical to claim these things. On top of that, from the viewpoint of efficiency, an explicit recognition creates responsibilities and tools to ensure observance and to oversight enforcement, including soft mechanisms like monitoring.

Against the foregoing, one can argue that the 'visibility' argument in favour of more human rights recognition does not take into account the flexibility of existing rights. Technological advances often change the way in which we exercise our rights and freedoms, and thus broaden the practical scope of these rights. Freedom of movement now extends to moving around by car, plane and the Internet, and not just by foot, boat or bike. [70] Taking the argument of the flexibility of existing rights as a starting point, we will now in the following sections analyse how the current human rights framework protects the use of the Internet. We start with the classic right to the freedom of expression, and then turn to some other rights.

4. Freedom of expression shielding Internet content and connectivity

In our analysis how the current human rights framework protects the use of the Internet, we will start with the freedom of expression as for our deliberations it is the most relevant element of this framework. Freedom of expression safeguards the right to inform and to be informed. Both Art 19 of the Universal Declaration of Human Rights (UDHR; non-binding) and Art 19 of the International Covenant on Civil and Political Rights (ICCPR) offer protection of the substance of the expression. They provide for freedom to 'hold opinions' and to 'seek, receive and impart information and ideas'. Similarly, Art 10 of the European Convention on Human Rights (ECHR) provides for 'freedom to hold opinions and to receive and impart information and ideas'. As content communicated over the Internet is no different than any other expression, it is protected by that freedom.

Freedom of expression also safeguards the means by which information is communicated. This issue raises some difficulties. Some international human rights instruments clearly protect the means of communication. Both Art 19 UDHR and Art 19 ICCPR explicitly provide for protection of the method by which the expression is communicated: 'through any media' and 'either orally, in writing or in print, in the form of art, or through any other media of his choice', respectively. La Rue argues that Art 19 of UDHR and its ICCPR counterpart were drafted with foresight to include and to accommodate future technological developments. He concludes that Art 19 is equally applicable to new communication technologies such as the Internet. Furthermore, the new UN commentary to Art 19 ICCPR (2011) argues that public authorities 'shall take account of the extent to which developments [in ICT] have substantially changed communication practices around the world'. It further concludes 'states parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto' (italics ours). [71] Jayawickrama cites a number of judgements from around the world interpreting the phrase 'other media' from Art 19 ICCPR. The courts have included broadcasting through the airwaves and cable (including retransmission) and television - even though these might require a licence form the state, mail, telephone with a pre-recorded message, theatres, movies, educational establishments and public spaces as long as they respect their purposes. [72] [73]

At the European level, we note that Art 10 ECHR, as well as Art 11 of the EU Charter of Fundamental Rights, are prima facie silent with respect to forms of expression. There is no phrase like 'through any media'. Yet these provisions apply to various forms and means in which information is transmitted and received, because 'any restriction imposed on the means necessarily interferes with the right to receive and impart information'. [74] Van Dijk et al. claim that since the case law attributes to Art 10 ECHR a broad protection, the Internet also comes within its ambit. [75]

The inclusion of the method of communication in the scope of the freedom of expression as laid down in Art 10 ECHR is confirmed by case law. [76] For example, in Jersild v. Denmark (1994), having analysed the role of the press in a democratic society, the European Court of Human Rights (ECtHR) stated: 'although formulated primarily with regard to the print media, these principles doubtless apply also to the audiovisual media'. [77] In Oberschlick v. Austria (1991) [78] and in De Haes and Gijsels v. Belgium (1997) the Court further stated that Art 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. [79]

Freedom of expression is predominantly a negative right, i.e. it protects against unjustified interference. In very recent examples, i.e. Scarlet v. Sabam (2011) and Sabam v. Netlog (2012) cases, the Court of Justice of the European Union (ECJ) confronted private digital censorship. [80] [81] In both cases, the Luxembourg Court analysed whether an injunction requiring the installation of a system for filtering electronic communications in order to prevent copyright infringement is compatible with the EU law. Such a system would: (1) filter all electronic communications passing via services of an intermediary service provider (ISP) or stored on its servers by its users; (2) be applied indiscriminately to all its customers; (3) constitute a preventive measure; (4) be operated exclusively at the expense of an ISP; and (5) be applied for an unlimited period. Such a system would be capable of identifying copyrighted content and subsequently preventing making available to the public.

The Court based its decision on both EU secondary legislation (i.e. relevant directives) and fundamental rights (i.e. the EU Charter of Fundamental Rights). In both cases the Court quoted its previous judgement in Promusicae, stating that 'the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights'. [82] [83] The Court found that the freedom to conduct business, the right to protect personal data and the freedom to information would be undermined. With regard to the freedom of expression, inScarlet, the Court held that such 'injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications' (italics ours). [84] The same argument was applied in Netlog. [85] In result, the Luxembourg Court in both cases ruled out a possibility to issue an injunction that requires installing such filtering systems. These cases suggest that the protection of the Internet - to the extent covered by the freedom of expression - could be achieved by defining the limits of interference thereto.

However, freedom of expression is not an absolute right, at least in the European legal order. [86] Absolute rights such as the right not to be tortured are rights that must be respected at all times, and may not be restricted even for compelling reasons. In the European human rights law these rights tend to be the exception. [87] In general, limitations may be imposed on most human rights, and this as long as certain conditions are satisfied, for instance legality, necessity and proportionality, and legitimacy of the interference. [88] With regard to the expression on the Internet, La Rue argues that restrictions may only occur in limited cases: child sexual abuse content (colloquially: child pornography), hate speech, defamation and advocacy of genocide and of national, racial or religious hatred leading to discrimination, hostility or violence. [89] It seems La Rue tried to find a common denominator and to identify a universal catalogue of possible limitations. While for some items on his list he would find a broad international consensus (e.g. child sexual abuse content), for some other items - especially those limiting free speech - he might find some opposition: there are differences among jurisdictions what the legitimate expression is. As Lessig and Resnick put it, 'what constitutes 'political speech' in the United States (Nazi speech) is banned in Germany'. [90]

5. Other rights could also give some Internet protection

A certain level of the protection of the Internet, both of its content and connectivity, could most probably also be derived from other rights than this on the freedom of expression. Looking at the substantive provisions of the European Convention, these rights include: the right to privacy (Art 8), freedom of thought, conscience and religion (Art 9) and freedom of assembly and association (Art 11). These rights have a lot in common with the right to freedom of expression, i.e. they protect the means of their realisation, three are all negative rights and the very similar limitation criteria apply thereto. In addition, one can think of situations in which the following rights can play a role: the right to education (Art 2 of the Additional Protocol to ECHR), the right to take part in cultural life (Art 15 ICCPR) the right to an adequate standard of living (Art 11(1) of the International Convenient on Economic, Social and Cultural Rights).

It would bring us beyond the scope of this contribution to discuss all these rights. The rights to privacy and to data protection strike the eye. As the protection of correspondence and communications fall within the scope of the right to privacy, one could argue that the use of e-mail and social networking sites is protected too. [91] In both Sabam cases (cf. section 4), the ECJ argued that the contested filtering system would have a negative impact on protection of personal data. In Scarlet, 'the injunction … would involve a systematic analysis of all content and the collection and identification of users' IP addresses from which unlawful content on the network is sent'. [92] The IP addresses might constitute personal data. [93] In Netlog, 'the injunction … would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network by its users'. [94] When it comes to initiatives on protection of privacy in the digital age, La Rue talks about preservation of online anonymity, in particular by refraining from adopting real-name registration systems, [95] and Murray calls for the right to employ encryption technology to ensure privacy and secrecy of communications. [96] As contemporary technology allows for almost perfect memory, exceeding the natural human capacity for memory, which is in some cases undesirable, Mayer-Schönberger calls for the reintroduction of 'forgetting'. [97]

Looking at criminal law, La Rue notes that states have an obligation to protect individuals against interference by third parties that undermines the enjoyment of freedom of expression. [98] La Rue, however, does not investigate the origins of this positive obligation in human rights law. The Strasbourg Court has already developed a number of positive obligations in the field of criminal law. [99] This obligation could most probably derived from the right to fair trial (Art 6 ECHR), the principle of no punishment without law (Art 7 ECHR), the right to appeal in criminal matters (Art 2 of the Seventh Protocol to ECHR) and the right not to be tried or punished twice (Art 4 of the Seventh Protocol to ECHR). Of a special importance here is the duty of the state to properly investigate crimes, most recently articulated in the case of Al-Skeini et al. v. the UK (2011), in which the Court interpreted it from Art 2 (right to life). [100] It is our understanding that this duty applies to cybercrimes too.

Segura-Serrano argues that the right to development could also possibly be invoked in order to ensure universal connectivity, interpreted in the light of today's Internet role. [101] The right to development in the context of the Internet access is invoked in particular to bridge the geographical digital divide (see section 2). The UNESCO assessed in as early as 1998 that 'every citizen should have the right to meaningful participation in the information society' [102] and the World Summit on Information Society (WSIS) explicitly called to bridge the digital divide. [103] The question remains, however, as to whether the right to development has achieved a sufficient degree of legal status and whether it could be enforceable, taking into account disputes about its content and personal scope. The answer is no (or: not yet) as the right to development is de facto only a best efforts obligation imposed on public authorities. As Kirchmeier put it, the right to development can be described as soft law: generally accepted, but not legally binding. [104]

6. Connectivity and the doctrine of positive human rights obligations

We have shown in the two previous sections that freedom of expression (and perhaps a number of other rights) protects both the Internet content and connectivity against unlawful interference. But in order to fully enjoy the use of the Internet, a maximum level of connectivity must be ensured. La Rue therefore 'reminds all States of their positive obligation to promote or to facilitate the enjoyment of the right to freedom of expression and the means necessary to exercise this right, including the Internet.' [105]

One of the tools to ensure maximum connectivity could be the doctrine of positive human rights obligations. In this section we will analyse how the said doctrine contributes to this aim. [106] As this concept is less developed on the international level, we will focus in the following on European human rights law.

While negative obligations require states not to interfere in the exercise of rights and have always been regarded as inherent in theEuropean Convention, the same is not necessarily true of positive. [107] [108] The convention itself provides for few positive obligations. [109] Thus they have been further developed by the Strasbourg Court, based on the principle of effectiveness, requiring interpretation in the sense which best protects individuals. As the Court is not competent to protect rights that do not have their basis in the convention, it has to find a link with rights that are recognised therein. The Court bases specific positive obligations both on a particular right within the ECHR and on the general obligation to respect human rights enshrined in Art 1. The ECtHR introduced the concept of positive obligations for the first time in the Belgian linguistic case (1968) and subsequently expanded the scope of what now has become the doctrine of positive human rights obligations. [110] Today, the idea of positive human rights obligations forms a recognised part of the rights guaranteed and observing these obligations goes hand in hand with observing the convention. [111] Lately, in Appleby et al. v. the UK (2003) the Court clarified that 'genuine, effective exercise of this freedom [of expression] does not depend merely on the State's duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals'. [112] In López-Ostra v. Spain (1994) the Court clarified that a positive obligation requires public authorities to take 'reasonable and appropriate measures to secure' the rights of an individual. [113] These measures can be of a legal or practical nature, or both.

The ECtHR has not yet had the occasion to rule on a complaint concerning a denial or restriction of the access to the Internet. [114] But resorting to the concept of positive obligations has enabled the Court to strengthen, and sometimes extend, the substantive requirements of ECHR. [115] In particular, the ECtHR appears increasingly willing to invoke the positive obligations doctrine in order to scrutinise the frailty and ineffectiveness of domestic laws, especially to protect vulnerable applicants. [116] This could pave the way to include proactive measures to ensure connectivity in the scope of Art 10 ECHR, albeit not unconditionally. If recognised, such a positive obligation would be of a substantive nature rather than of a procedural one. [117] However, at the current state of the convention's development, it is highly unlikely that the Court would find a breach of Art 10 ECHR solely on the grounds of the lack of Internet connectivity. It might, however, find that a state has failed to fulfil its obligation when hearing cases on more general aspects of the freedom of expression. It is our expectation that such cases would first deal with vulnerable people or people with a specific relationship with a state, e.g. imprisonment.

A first illustration of our hypothesis is the pending case of Jankovskis v. Lithuania about the refusal by prison authorities to give a prisoner access to the Internet. [118] The applicant wanted to enrol at university via the Internet. He requested information from the ministry of education about such a possibility. He was subsequently informed that all relevant information was posted on a website. The authorities refused him to access the Internet on the grounds that the prison rules in force did not extend thereto. A lower court observed that a list of prohibited items included, inter alia, phones, as a measure to prevent new crimes. The said court then concluded that the Internet ban was limiting such possibilities too. On appeal, a senior court also argued that while all prisoners' correspondence is subject to surveillance, the use of e-mail would omit any control.

It is our opinion that the Strasbourg Court could find a violation only with regard to the ultimate aim for which the Internet access was needed. If it had not been for Jankovskis' education desires, his Internet ban could be more easily said to be proportionate. If the Court finds a violation of Art 10 ECHR, it will most probably be based on the argument that the prison authorities have had a positive obligation to provide Jankovskis Internet access yet limited. [119] A prisoner's desire to pursue university education deserves appreciation, contributes to the resocialization aim and thus one should not limit that. As nowadays most of the higher education institutions make an extensive use of ICT, the process of education would probably be inefficient without the Internet. Taking into consideration his particular status, i.e. imprisonment, his Internet access should be restricted to certain purposes like learning and some enforcement measures should be employed to ensure observance of this limitation. From the technological viewpoint, his access might be limited, e.g. only to the university's website and/or its intranet, and, if necessary, his Internet traffic might be oversight. In this particular situation, a positive obligation might mean a requirement to develop and employ a technology (e.g. software) with these functionalities and to engage trained personnel to supervise. As a counterargument, the Court might consider whether any distance-learning methods that do not require the use of the computers and that can be reconciled with the strict prison rules were available, in particular whether these methods offered education in the similar field, of a similar quality and in the language understood by the applicant.

It is worth to mention here Boulois v. Luxembourg (2010) case. [120] Although its main concern was whether a right to a prison leave exists, one of the aspects of this case is of special significance here. The applicant, held under a semi-custodial regime, was deprived of a temporary release, which he needed inter alia to pursue education. Although the Court has recognised the legitimate aim of a policy of progressive social reintegration of prisoners, it held that a temporary release constitutes a privilege and not an enforceable right. Post-sentencing authorities have a certain degree of discretion in deciding whether a prisoner merits such a release. These authorities assess the personality of the prisoner, his or her progress and the risk of a further offence, among others. We observe that granting a prisoner the access to the Internet - in particular for educational purposes - might be considered a privilege too. Thus a decision to grant cannot be of an automatic nature and certain discretionary criteria might be applied. We note that the concept of positive human rights obligations could be used to protect Internet content too. For example, in Özgür Gündem v. Turkey, a newspaper was a target of violence that remained unanswered by public authorities. The Court held that 'that the Government have failed, in the circumstances, to comply with their positive obligation to protect Özgür Gündem [newspaper] in the exercise of its freedom of expression'. It is well possible that the Court might follow this path with regard to creation of the content on the Internet. [121]

7. The doctrine of human rights as a living instrument and universal connectivity

In June 2011 Lady Hale, a justice of the UK Supreme Court, gave a speech on the evolving nature of the European Convention on Human Rights and the limits to its growth. In her reasoning she pointed out that there are three governing ideas behind the evolution of the ECHR, i.e.

1. priority to the object and purpose of the convention,
2. the convention as a living instrument, and
3. practical and effective protection of rights. [122]

In the following section we will use her argumentation to show that yet another doctrine, this time this of human rights as living instruments, could contribute to a widening of the scope of the current rights, in particular the freedom of expression, to Internet aspects.

The doctrine of fundamental rights as living instruments is broad and could explain why the Internet in its entirety, i.e. not only its content but also the idea of proactive measures for connectivity too, could be based on the interpretation of existing rights, in particular the freedom of expression. Hale takes a historical perspective and argues first that in Golder v the UK (1975) the Court gave priority to the 'object and purpose' of the convention. [123] [124] It is about purposive rather than a literal construction of the language used. On the basis of this argument, one can assume that the intention was to ensure a full enjoyment of the freedom of expression. As we discussed in section 4, Art 10 applies if the expression is made on or via the Internet and/or any other medium developed in the future. Second, in 1978, in Tyrer v the UK, for the first time the Court has stressed that ECHR - drafted in 1950s - is a 'living instrument', i.e. 'must be interpreted in the light of present-day conditions' and practices among the contracting parties. [125] Paraphrasing Hale, if for most of contemporary Europe (access to) the Internet is an inseparable part of life, then this will influence the interpretation of the convention. Finally, inAirey v Ireland (1979) the Court articulated that the rights protected must be 'practical and effective' rather than 'theoretical or illusory'. [126] There is no point in having the right to the Internet if one cannot in practice exercise it. Hence one can observe a progressive character of the Strasbourg's case law. [127] However, Hale argues that there are some natural limits to the convention's growth and that such development should be a predictable one.

We saw in section 2 that some national legal systems already explicitly provide in their constitutional system for a positive obligation to ensure connectivity. We also mentioned a 2009 judgement of the French Constitutional Court declaring that the freedom of expression implies 'freedom to access such services'. Relevant here is that the French Constitutional Court used the concept of human rights as living instruments to include the protection of Internet access within the scope of the freedom of expression. Having analysed the 'present conditions' and Art 11 of the Declaration of the Rights of Man and the Citizen of 1789, which guarantees freedom of expression, the Court held (2009) that 'in the current state of the means of communication and 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, this right implies freedom to access such services'. [128] It is well possible that the Strasbourg Court might follow this path.

However, as Murphy and Cuinn argued in 2010, it would be premature to try to characterise the stance of the Strasbourg Court on new technologies. The Court's decisions in this area are best seen as 'works in progress'. They give direction on individual complaints but taken together they do not allow for a full characterisation of the Court's stance. There is, however, evidence of more general trends including the Court's expansive approach to the interests protected by Art 8 and its development of positive obligations. [129] One could argue that, on the one hand, the more technology becomes indispensable part of our lives, the more protection it deserves. On the other hand, the more intrusive technology is, the individual merits more protection.

8. Additional legal sources that already ensure connectivity

Let us end this exploration of the human rights landscape with a short analysis of the added value of regular legal instruments. We have discussed in section 6 that La Rue 'reminds all States of their positive obligation to promote or to facilitate the enjoyment of the right to freedom of expression and the means necessary to exercise this right, including the Internet.' The states should adopt effective and concrete policies and strategies to make the Internet widely available, accessible and affordable to all. [130] Interesting about La Rue is that his report suggests a rights approach. However, a closer reading shows that he does not really insist on creating an explicit right to the Internet (access). In this section we will analyse a few tools outside the human rights framework. These proactive measures, as La Rue envisages them, are different from the concept of positive obligations discussed in section 6. [131] One of the examples of such measures is a universal service obligation. Universal service is a minimum set of services of specified quality to which all end-users have access, at an affordable price in the light of specific national conditions, without distorting competition. [132] This constitutes an enforceable right, but it is not conceived nor recognized as a fundamental or human right. The right, where it is recognized, figures in secondary legislation.

In the EU, the Universal Service Directive, as amended by Directive 2009/136, states that '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' (italics ours). [133] This reinforces the policy that public telephone access should be capable to provide access to the 'public Internet' of a certain quality, although it does not dictate a specific transmission rate for the Member States to comply with. Recital 8 specifically states that it is 'not appropriate to mandate a specific data or bit rate at Community level.' [134] It should however be noted that this was the position some ten years ago. As the Directive contains a revision clause, enacted to take into account technological developments (Art 15), a revision process started in 2010. It raised a question and a debate on whether a broadband access should be included in universal service obligation. [135]

A number of EU Member States already include a high-speed Internet access in their universal service obligation, i.e. Estonia, Finland and Spain. [136] [137] [138] Other Member States (e.g. Poland) and the EU itself have adopted policies to ensure universal availability of broadband access. [139] The EU Digital Agenda contains a number of actions to be undertaken (cf. actions from 42 to 49) in order to achieve the very fast Internet. The EU's objective is 'to bring basic broadband to all Europeans by 2013 and to ensure that, by 2020, all Europeans have access to much higher Internet speeds of above 30 Mbps and 50% or more of European households subscribe to Internet connections above 100 Mbps.' For these purposes, in October 2011 the Commission proposed as a part of the Connecting Europe Facility to spend almost €9.2bn from 2014 to 2020 on pan-European high-speed broadband networks projects. This proposal now needs to be accepted by both the European Parliament and the Council. [140] Besides a human rights protection and universal service obligation, universal connectivity could to be guaranteed by various means, such as, policy measures, including financial instruments, and/or by market efficiency. Should these measures prove effective, one could argue not to work with the human rights language but to rely only on these policies.

9. Conclusion: the current framework does protect, but not entirely

This paper examines how the current human rights framework protects the use of the Internet. We have shown that the right to freedom of expression - and perhaps a few other human rights (e.g. the right to privacy) - can be invoked to protect both content and connectivity of the Internet against unlawful interference. We have equally argued that the concepts of positive state obligations and of human rights as living instruments could be invoked to strengthen that protection. The current legal framework is not powerless, especially when complemented with other legal instruments.

Having said so, we equally observed in this paper that the current human rights framework does offer some protection to the use of the Internet but it does not cover it entirely. The main concern left outside is ensuring universal connectivity, an issue that within the EU is covered by secondary legislation. For us the question whether a specific human right is a proper means to protect the use of the Internet in its entirety remains unanswered, although we tend to see the benefits of a recognition more than the disadvantages. Human rights trigger policy making, so why not? Concerns as diverse as the ones identified in this paper - from the political (censorship) to the social (digital divide) - can be addressed by one single intelligently drafted new right. Regardless of the answer, before such a new right to freely use the Internet is recognised, one should take into account what is already protected and how.