SHOULD ACCESS TO THE INTERNET BE DESIGNATED A FUNDAMENTAL HUMAN RIGHT

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Emmanuel C. Onele

 

 

 

 

Emmanuel C. Onele

  1. Introduction

In 2011, the Human Rights Council passed a resolution to appoint a special rapporteur “to continue to provide his/her views, when appropriate, on the advantages and challenges of new information and communication technologies, including the internet and mobile technologies, for the exercise of the right to freedom of opinion and expression, including the right to seek, receive and impart information and the relevance of a wide diversity of sources, as well as access to the information society for all.”

The Human Rights Council which is an intergovernmental arm of the United Nations (“UN”) charged with the responsibility of strengthening, promoting, and protecting human rights  had overtime emphasised the need for access to the internet and promoting the use of the internet universally and by extension protecting and promoting other rights such as the right to free expression, political participation as well as achieving the sustainable development goals.

In furtherance of the need to protect this right, the Secretary – General of the United Nations highlighted efforts by the UN in his report and called for universal access to the Internet. In the report, he emphasised the need to include updated governance arrangements to deliver better public good and usher in a new era of universal social protection, health coverage, education, skills, decent work and housing, as well as universal access to the internet by 2030 as a basic human right.  Because of the invaluable space provided by the internet for self-expression, protests and mobilisation, the UN acknowledged the right to the internet in 2011 and thereafter, by an announcement in 2016.

The UN noted that access to the internet needed to be anchored in a human rights-based approach, and that the internet should be open, accessible, and nurtured by multi-stakeholder participation. In this regard, it is safe to say that the UN’s action in ensuring that access to the internet right is a fundamental human right is hinged on several factors anchored on several other rights. This was shown in the recent wave of demonstrations and protests across west, central and northern Africa. The Black Lives Movement, #EndSars movement, elections in Brazil, Kenya, Nigeria, and Lesotho which were greatly influenced by social media and the internet, demonstrate the need to facilitate access to the internet for all persons.

The use of the internet was equally evident during the COVID-19 lockdowns, where life migrated online and the internet became the only avenue through which education, work, information, and social interactions could continue for millions worldwide. The internet was also a crucial resource for finding and sharing life-saving public health information about the pandemic, making it a vital part of accessing the basic right to health. This also proves that access to the internet is both an enabler for the enjoyment of other human rights, while also increasingly becoming a basic right itself.

  1. Internet as a Vital Tool for Freedom of Expression, Association and Participation in Democracy

The internet, and social media platforms have become a critical part of the civic space and can be more accessible than a physical civic space in many countries. This provides ample opportunity for people to seek to substantiate their basic rights, gain access to government programs, challenge state policies, interact, organise protests, and speak freely against government or any form of oppression.

Several campaign activities have been organised to protest against some forms of oppression against the government or its agencies, some of which include #KeepItOn which was created after Egypt shut down the internet during the Arab Spring, #EndSars, which came as a result of police brutality in Nigeria against the youth and refusal on the part of the Nigerian Police Force to punish erring officers and the #FreeYouth protest in Thailand which focused on discontent towards the government and demands for democracy.

Upon a closer look at all the aforementioned online protests, one can see that the campaigns came as a response to increasing use of governmental power to crack down on dissent. In most cases, the protests moved from a mere online protest into more physical and mainstream protest and in response, the internet shutdowns were activated, in clear violation of the fundamental right of people to protest thereby preventing people from coordinating and mobilising themselves for protests. In response to the #EndSars protests in Nigeria, the government shut down access to Twitter in the country. This led people into downloading Virtual Private Networks (“VPN”) so as to connect with the world. The government didn’t stop at shutting down twitter access, the government embarked on deactivating private bank accounts of people who spearheaded the protest. The government took further steps to criminalize the conduct of individuals who were remotely involved in the protest and those who mobilized for the protest. It is instructive to note that governmental bodies and state actors often criminalize democratic action as an excuse for internet shut down. Most often than not, government interprets mobilization and donation for protest as money laundering and acts of terrorism.

Recognising the right to internet access is implicit in existing human rights. This interpretive approach has been adopted to contend for instance that the right to climate change asylum due to environmental degradation (not explicitly a binding international human right) is included in the right to life, which is a fundamental human right as expressed in major international treaties. The right to internet access is arguably implicit in established human rights, including the freedom of expression, which is provided in Article 19 of the Universal Declaration of Human Rights (“UDHR’) and the International Covenant on Civil and Political Rights (“ICCPR”) as well as freedom of association.

The UN Human Rights Council has noted that these provisions encompass the right to internet access. The former UN Special Rapporteur on the promotion and protection of the right to freedom of expression and opinion, similarly argued that internet access should be recognised as a human right vital to freedom of expression, opinion and assembly. It is worth noting that other provisions of the ICCPR articles supports a right to internet access. They include Article 22 (freedom of association) and Article 25 (right to “take part in the conduct of public affairs”).

Essentially, establishing the right to internet access cannot exist in vacuum if adequate supporting infrastructure is not provided. The need for governmental bodies to provide infrastructures and ICT equipment to facilitate access to the internet cannot be overemphasised. Countries need to develop strategies to encourage technological transfer as well as encourage programs to accelerate universal internet access. In line with Article 2 of the ICCPR, state actors ought to take all reasonable steps to ensure they adopt measures to give effect to the rights recognised by international conventions.

The need to recognise the right to internet access is rooted in the indivisibility of fundamental human rights. Human rights are indivisible, interdependent and interrelated. This means that different human rights are intrinsically connected and cannot be viewed in isolation from each other. The enjoyment of one right depends on the enjoyment of many other rights and no one right is more important than the rest. The principles of interdependence and indivisibility of rights are referenced in all the major human rights treaties. When one set of human rights (e.g., economic and social) is violated, this also affects other rights (e.g., civil and political rights).

Regarding the interconnectedness between the internet and established human rights, it is nearly impossible to meaningfully participate in public affairs and politics without internet access. The same goes for accessing an adequate education, healthcare, banking facilities, or other economic and social human rights. Thus, internet access should be recognised as a fundamental human right because it is implicit in, and necessary for the realisation of other fundamental human rights.

  1. Designating access to the Internet as a Fundamental Right under

International Law

As discussed above, internet right is an essential part of everyday activity, as such it forms the fulcrum of all rights most especially the freedom of expression, freedom of association as well as freedom to participate in public affairs. This makes its implementation essential to all aspects of human life from communication to business, entertainment, investment, as well as political participation.

In 2011, the UN’s Human Rights Council commissioned a special rapporteur to report on how the right to the freedom of opinion and expression can be protected. The essence of the exercise was to understudy how the right to the internet can be used as a tool for social engineering and development. This was followed up  in 2016 when the UN General Assembly passed a resolution that recognised the promotion, protection and enjoyment of human rights on the internet as a vital component of the international human rights framework.  Essentially, access to the internet can help in promoting socio-economic development, human capital development, access to information, increased civic participation, educational enhancement, financial inclusion, and access to job opportunities. It provides ample opportunity for individuals to increase their standard of life while providing a platform for political and social contributions.

Designating access to the internet as a fundamental right has several implications. It would require governments to ensure that all individuals have access to the internet, regardless of their economic, social, or geographic status. It would also oblige governments to ensure that access to the internet is affordable, reliable, and safe. By designating internet access as a fundamental right, governments would be held accountable for ensuring that they create an environment that facilitates access to the internet for all individuals. As such, governments will be required to facilitate technology transfer while providing the needed infrastructure and information communication technologies, such as cables, modems, computers, and software, to access the internet.

Undoubtedly, putting the infrastructure in place will be a herculean task but the main hurdle is the political will. Once there is political will, public-private partnerships will enable faster connectivity around each country. Irrespective of how tasking this could be for the government, many countries such as Finland, France, and Greece have recognised internet access as a fundamental right. In Finland, the government has taken steps to ensure that every citizen has access to a broadband connection of at least 1 megabit per second. Similarly, in France, the government has committed to ensuring that every citizen has access to high-speed internet by 2022. In Greece, the government has included access to the internet as a fundamental right in its laws and has taken steps to ensure that every citizen has access to a broadband connection through the “Router Freedom” policy of the Hellenic Telecommunication and Post Commission. Other countries that have recognised internet access as a fundamental right include Estonia, Spain, Costa Rica, and India. In Estonia, the government has provided free Wi-Fi access in public places, and has made it possible for citizens to vote online. In Spain, the government has taken steps to ensure that every citizen has access to high-speed internet, and has included access to the internet as a fundamental right in its laws. In Costa Rica, the government has included access to the internet as a fundamental right in its constitution and has taken steps to ensure that every citizen has access to a broadband connection. In India, the government has recognised access to the internet as a fundamental right in its laws, and has taken steps to provide internet access to every citizen.

While several countries have recognised internet access as a fundamental right, there are still a lot more countries where access to the internet is limited or restricted. In some countries, governments restrict access to the internet as a means of controlling information and limiting dissent. However, there are several challenges to designating internet access as a fundamental right under international law. It is worth noting that not all countries have the infrastructure to provide internet access to all their citizens because of socio-economic realities. The cost of providing internet access to everyone can be high, and many governments may not be able to afford it or subsidize access to the internet.

Overall, the designation of internet access as a fundamental right is an important step towards developing and promoting human rights. Internet access is an important tool for exercising other rights, including freedom of expression, freedom of association, access to public affairs, access to healthcare, economic rights, and political participation. By designating internet access as a fundamental right under international law, governments would be held accountable for ensuring that their entire citizens have access to the internet regardless of their social and economic status.

  1. Conclusion

Globally, the realisation of the right to internet access will involve significant international cooperation. Countries in the Global North, with substantial technological resources, have a duty to assist countries from the Global South in securing internet access. However, getting governments to fulfill this obligation will continue to be politically challenging as countries across the eastern and western blocs are still at logger heads with one another.

Access to internet as a fundamental human right is not restricted to freedom of expression, political participation, and opinion. It cuts into social and economic rights as stipulated in the ICCPR as well as the right to healthcare services. Internet rights guarantee the promotion of economic rights by aiding seamless banking through FinTech, amplified by the instrumentality of tech-savvy-middle-aged individuals.  The right to healthcare services is also important and would be aided further through internet rights as was evident during the Covid-19 pandemic. Healthcare centers and individuals can benefit when access to health services is “just a click away”.

The first step in this process is the recognition of the fundamental human right to internet access. But meaningful human rights of access to the internet must recognise the power imbalances built into this system in order to avoid replicating and intensifying the inequalities endured by marginalised communities’ offline. Post-recognition of the right to internet access, confronting inequities in access and experience, and developing strategies to address them, is absolutely essential.

 


For further information on this article and area of law,
please contact Emmanuel C. Onele at:
S. P. A. Ajibade & Co., Lagos by
Telephone (+234 1 472 9890), Fax (+234 1 4605092)
Mobile (+234.815.119.1865 +234.811.018.0200)
Email: eonele@spaajibade.com
www.spaajibade.com


  1. Emmanuel C. Onele, Associate Corporate Finance & Capital Market Department, SPA Ajibade and Co., Lagos, Nigeria.
  2. Human Rights Council resolution 7/36 2010.
  3. Human Rights Council resolution 7/36 2010, para 4(f).
  4. See, https://www.ohchr.org/en/hr-bodies/hrc/about-council, accessed 26th April 2023.
  5. Internet Society, ‘The internet and sustainable development goals’ available at https://www.internetsociety.org/wp-content/uploads/2015/06/ISOC-ICTs-SDGs-201506-Final.pdf accessed 23rd August 2023.
  6. Our Common Agenda – Report of Secretary – General of the UN 2021, available at https://www.un.org/en/content/common-agenda-report/assets/pdf/Common_Agenda_Report_English.pdf, accessed 26th April 2023.
  7. The special rapporteur appointed by the Human Right Council in its resolution 7/36 2010 emphasised on the need to promote and protect the right to freedom of opinion and expression through the use of internet.  The report is available at https://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf accessed 26th April 2023.
  8. See, https://www.un.org/en/chronicle/article/government-policy-internet-must-be-rights-based-and-user-centred accessed 26th March 2023.
  9. See https://www.pewresearch.org/internet/2021/09/01/the-internet-and-the-pandemic/ accessed 27th March 2023.
  10. See, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7280123/ accessed 27th April 2023.
  11. See, https://www.accessnow.org/five-years-later-the-internet-shutdown-that-rocked-egypt/, accessed 27th April 2023.
  12. See, https://www.amnesty.org/en/latest/campaigns/2021/02/nigeria-end-impunity-for-police-violence-by-sars-endsars/ accessed 27th April 2023.
  13. Aim Sinpeng, ‘Hashtag activism: Social Media and the #FreeYouth Protest in Thailand’, available at https://www.tandfonline.com/doi/full/10.1080/14672715.2021.1882866, accessed 27th April, 2023.
  14. Premium Times Newspaper, ‘#EndSARS: Nigerian govt moves against protesters, freezes bank accounts’, available at https://www.premiumtimesng.com/news/headlines/424932-endsars-nigerian-govt-moves-against-protesters-freezes-bank-accounts.html#:~:text=The%20Federal%20High%20Court%20in,granted%20by%20Justice%20Ahmed%20Mohammed accessed 16th May 2023.
  15. Conrad Johnson-Omodiagbe, ‘#EndSARS is personal for Nigeria’s tech sector, so it began raising money for the movement’, available at  https://restofworld.org/2020/endsars-protests-nigeria-fintech/
  16. Universal Declaration on Human Rights (adopted 10 December 1948) 217 A(III) (UNGA).
  17. International Covenant on Civil and Political Rights (adopted 19 December 1966, entered into force 23 March 1976) 999 UNTS 171.
  18. Art. 21 of the International Covenant on Civil and Political Right provides that “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others”.
  19. See, https://documents-ddsny.un.org/doc/UNDOC/GEN/G16/156/90/PDF/G1615690.pdf?OpenElement accessed May 2, 2023.
  20. See, https://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf accessed May 2 2023.
  21. This provision is fundamental to the democratic tenets canvassed by the United Nations. It is important because the actualisation of the right to the internet can only be made possible if people are allowed to freely communicate and interrelate while genuinely getting involved in periodic elections. Hence, the right to take part in public affairs is an extension of the right to participate in democracy which is only achievable when the right to internet access is safeguarded.
  22. See, https://www.coe.int/en/web/compass/what-are-human-rights-#:~:text=Human%20rights%20are%20indivisible%2C%20interdependent,more%20important%20than%20the%20rest accessed May 2, 2023.
  23. Art. 25 ICCPR.
  24. Article 21, 22 and 25 ICCPR.
  25. Frank La Rue, ‘Report on Special Rapporteur on Promotion and Protection of the Right to Freedom of Opinion and Expression’ cited as UN/A/HRC/17/27 available at https://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf. accessed 3rd May 2023.
  26. Ibid at 19.
  27. See, https://www.un.org/en/chronicle/article/government-policy-internet-must-be-rights-based-and-user-centred accessed 3rd May 2023.
  28. Stephen B. Wicker & Stephanie M. ‘Santoso Access to the Internet is a Human Right, Communications of the ACM’, June 2013, Vol. 56 No. 6, Pages 43-46.
  29. BBC News, Finland makes broadband a ‘legal right’ available at https://www.bbc.com/news/10461048. Accessed 3rd May 2023.
  30. See, https://slate.com/technology/2020/05/france-hate-speech-law-lutte-contre-haine-sur-internet.html accessed 3rd May 2023.
  31. Stephanie Borg Psaila, ‘Right to access the internet: the countries and the law that proclaims it’,  available at https://www.diplomacy.edu/blog/right-to-access-the-internet-countries-and-laws-proclaim-it/ accessed 3rd May 2023.
  32. Hellenic Telecommunications and Post Commission – EETT realizes that Router Freedom would be fully compatible with Greek legislation, and would not cause market restrictions or interoperability issues hence it adopted the EETT 2022 regulation which is a development of the 2020 regulation. The aim of the regulation is to provide broadband internet for every Greek citizen by adopting the right to internet access through its “Router Freedom” policy.
  33. The Commission is charged with preparing policies and regulating telecommunication in Greece.
  34. Ibid at 25
  35. A new Spanish telecommunications law came into force in Spain, implementing one of the key measures set out in the country’s agenda for digital transformation, Spain Digital 2025. The new law in Spain implements the requirement for the European Union Electronic Communications Code 2018. Spain adopted the Code into national law, a requirement that suffered delay – with Spain being one of a number of countries referred to the European Court of Justice because of it – but had finally come into force on 30 June 2022. Article 57 of the European Union Electronic Communications Code provides specifically for the deployment of internet infrastructures to small areas and such deployment shall not be restricted by the government. Available at https://ecija.com/en/sala-de-prensa/new-telecoms-law-introduced-in-spain/ accessed 18th May 2023.
  36. Costa Rica’s Constitutional Court in Valdelomar and Sibaja v. Costa Rican Superintendence of Telecommunications, Decision No. 10627, 2010 declared access to technologies such as the Internet to be a fundamental right of citizens, to allow them to exercise their human rights.
  37. Article 19, 21A and 22 of the Indian Constitution. The Supreme court of India also held in Anuradha Bhasin vs Union of India (2020) 3 SCC 637 where the court decided the Communication restrictions imposed in via internet and the Court identified a derivative fundamental right to access of internet and also endorsed the principle of proportionality
  38. Some of those countries include China, North Korea, Saudi Arabia Cuba etc.
  39. Ibid at 19.
  40. The ’One Laptop Per Child (OLPC)’ campaign was very instructive in ensuring internet access is evenly distributed. The mission of OLPC is to empower children of developing countries to learn by providing one connected laptop to every school-age child thereby aiding educational opportunities for world economic poorest children. Their campaign program is available at https://www.comminit.com/content/one-laptop-child-olpc-2.  accessed 3rd May 2023.

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