Is internet access a human right?

11 January 2012 by

A recent United Nations Human Rights Council report examined the important question of whether internet access is a human right.  

Whilst the Special Rapporteur’s conclusions are nuanced in respect of blocking sites or providing limited access, he is clear that restricting access completely will always be a breach of article 19 of the International Covenant on Civil and Political Rights, the right to freedom of expression.

But not everyone agrees with the United Nations’ conclusion. Vinton Cerf, a so-calledfather of the internet” and a Vice-President at Google, argued in a New York Times editorial that internet access is not a human right:

The best way to characterize human rights is to identify the outcomes that we are trying to ensure. These include critical freedoms like freedom of speech and freedom of access to information — and those are not necessarily bound to any particular technology at any particular time. Indeed, even the United Nations report, which was widely hailed as declaring Internet access a human right, acknowledged that the Internet was valuable as a means to an end, not as an end in itself.

Cerf does concede that internet access may be a civil right, defined as a right which is “conferred upon us by law” (arguably a definition which does not apply to the UK where the European Convention on Human Rights has been incorporated in to our law). He says:

While the United States has never decreed that everyone has a “right” to a telephone, we have come close to this with the notion of “universal service” — the idea that telephone service (and electricity, and now broadband Internet) must be available even in the most remote regions of the country. When we accept this idea, we are edging into the idea of Internet access as a civil right, because ensuring access is a policy made by the government.

There have been some interesting responses to Cerf’s op-ed. Amnesty International’s USA blog argues that he provides an “exceptionally narrow portrayal of human rights from a legal and philosophical perspective“. Moreover, his means versus ends characterisation of rights is philosophically incoherent, for:

while access to the physical town square may not be a human right in isolation, it has always been for most inseparable from the right to association and expression

So, applying the same logic, internet access is inseparable from freedom of expression and its lesser spotted cousin, freedom of access to information. Moreover, I would argue that internet use may also fall within Article 8 ECHR, the right to family and private life, as email, Skype, Facebook and Twitter are now essential tools of interaction between friends and family.

From the technological standpoint, JD Rucker on the Techi Blog argues that outcomes are key, and elevating the internet to the status of an inalienable right will result in “increased opportunity, improved education, and the end of hostilities based upon ignorance”.

Matthew Ingram on Gigaom also makes the practical point that not defining internet access as a human or civil right “makes it easier for governments to place restrictions on access or even shut it down entirely“. This is particularly relevant given the widely-cited role of the internet and specifically social media in recent political revolutions such as the 2011 Arab Spring.

Of course, this is not just a philosophical debate. States already and regularly ban internet use in one form or another. Closer to home, there are already a number of laws which allow state authorities to restrict internet access, most notably rules relating to sex offenders and terrorist suspects. The troubled Digital Economy Act has been attacked over proposed powers to ban websites which host copyright material without permission. The Government subsequently backed down over the issue, but the Act remains controversial.

Interestingly, the UK Court of Appeal has agreed with the sentiment of the UN report, although without expressing its conclusion in terms of human rights. The recent case of Regina v Smith & Others (read Maria Roche’s post here) involved an examination of the terms of a Sexual Offences Prevention Order under the Sexual Offences Act 2003.

The court ruled that the internet was an “essential part of everyday living” and therefore, a complete ban on use in this case would be disproportionate. This was expressed very wide terms, and it is difficult to imagine many scenarios where a complete ban would be permitted by law.Lord Justice Hughes said:

Before the creation of the internet, if a defendant kept books of pictures of child pornography it would not have occurred to anyone to ban him from possession of all printed material. The internet is a modern equivalent.

However, full internet bans have occasionally been permitted by the courts. Mr Justice Silber ruled in the November 2011 case of AM v. Secretary of State for the Home Department (see Rosalind English’s post) that a full internet ban placed upon a terrorist suspect subject to a control order (a highly restrictive anti-terrorism power) was lawful. It should be noted that the successor to control orders, the TPIM, no longer permits complete internet bans.

Interestingly, in AM the judge accepted the security services’ evidence that it would be practically impossible to monitor the suspect’s internet use, due in part to vulnerabilities in the Windows operating system. This sounds highly debatable, but perhaps that technical argument will be had on another day.

Ultimately, it seems that the current position in UK law, reflecting but not wholly endorsing the UN report, is that internet access will remain, reflecting freedom of expression under Article 10 ECHR, a qualified right. That is, it can be restricted but only if that restriction is provided for by law and necessary/proportionate in a democratic society, unlike for example the absolute restriction on inhuman and degrading treatment under Article 3 ECHR.

Indeed, the UN Report accepts that in some scenarios internet access will need to be restricted, for example in the case of sex offenders and terrorist suspects – which is also the conclusion of this excellent 2011 post on Inforrm’s blog.

This is a question which will certainly be revisited in the coming years. Whether the UN or Vinton Cerf is right on a philosophical level as to whether internet access should be characterised as a human right, technology is changing rapidly and the courts will have to do their best to keep up. Whether or not it is a human right in its own respect, the internet provides the gateway to other freedoms, notably freedom of expression and the right to family and private life and therefore access to can be, practically, inseparable from the rights themselves.

It is highly unlikely that internet access will ever attain the status of an absolute right. However, the current position of UK courts rightly makes it very difficult indeed for the state to ban completely a citizen’s use of the internet, however strong the justification.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

3 comments


  1. Susan Alcock says:

    Until really basic human rights – such as the right to water and sanitation – are achieved in this world of ours, the ideals of access to information are really just wishes from a small proportion of highly developed nations. Have you been to Africa and seen the desperation of people trying to get clean water? Or of girls not having an education because they won’t go to the schools if there are no toilets available? And the disease and poverty that arises out of lack of what I would call true HUMAN RIGHTS are frightening.
    Please remember that the “liberal West” likes to bandy around such terms as “human rights” but we should fix the essentials first before trying to insist on everyone having access, as a “human right” to everything else.

  2. Caroline says:

    Interesting that you discussed the case of AM v Sec of State (Nov 2011). A qualified right indeed. The Terrorist Act 2006 (Part1, S 3) certainly seems to impinge upon the right to freedom of expression particularly in relation to internet activity. Of course, there are plenty of arguments attempting to justify this in certain circumstances…but as part of the bigger picture, it is just another example of terrorist legislation encroaching on our fundamental rights. It is important that such measures do not become ‘commonplace’, used when it is not necessary/proportionate in a democratic society.

  3. cidermaker says:

    I do not agree with either the UN position nor Cerf’s position. The Internet is merely a tool for conveying& obtaining information. To say that access to it is human right strikes me as ridiculous. Further to say that it is ‘essential’ is misusing the term. ‘Essentials’ are things like food, shelter etc. People can live, relate, communicate & gain knowledge without the Net as they always did before it existed.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: