Human Rights and the Digital Divide

Anne Peacock

• Publisher: Routledge
• Year: 2019
• Print ISBN:
  9780367728175
• eBook ISBN:
  9781351046770
• Topic: Law
• Subtopic: International Law
• Index: Law

The Internet's importance for freedom of expression and other rights comes in part from the ability it bestows on users to create and share information, rather than just receive it. Within the context of existing freedom of expression guarantees, this book critically evaluates the goal of bridging the 'digital divide' – the gap between those who have access to the Internet and those who do not. Central to this analysis is the examination of two questions: first, is there a right to access the Internet, and if so, what does that right look like and how far does it extend? Second, if there is a right to access the Internet, is there a legal obligation on States to overcome the digital divide?

Through examination of this debate's history, analysis of case law in the European Court of Human Rights and Inter-American Court of Human Rights, and a case study of one digital inclusion programme in Jalisco, Mexico, this book concludes that there is indeed currently a legal right to Internet access, but one that it is very limited in scope. The 2012 Joint Declaration on Freedom of Expression and the Internet is aspirational in nature, rather than a representative summary of current protections afforded by the international human rights legal framework. This book establishes a critical foundation from which some of these aspirations could be advanced in the future. The digital divide is not just a human rights challenge nor will it be overcome through human rights law alone. Nevertheless, human rights law could and should do more than it has thus far.

1 General introduction

Writing in 1930, Bertolt Brecht described the grand possibilities of then-modern communication technology:

Radio could be the most wonderful public communication system imaginable … could be, that is, if it were capable not only of transmitting but of receiving, of making listeners hear but also speak, not of isolating them but of connecting them.¹

The Internet achieves what broadcast media did not: the Internet permits information to be created and shared by all its users. In other words, end users can be both receivers and providers of information in a ‘peer–peer’ communication relationship, in contrast to the traditional broadcast relationship of one professional information provider serving many passive receivers. Moreover, unlike broadcasts, on the Internet, information can easily travel the globe and be received long after it is sent, thereby eliminating barriers of time and space and bypassing many of broadcast media’s traditional gatekeepers. This instantaneous connection between people worldwide enabled the creation of a ‘global information society.’

This global information society via the Internet has facilitated peer–peer communication, which is now a foundation of a market economy, and has accordingly been linked to economic development.² We now have unfettered information about political candidates, changing the way democratic elections are run and won.³ The global information society permits the discussion of grievances with people who are similarly situated, which is the basis for civil society.⁴ More generally, it allows the development of communities and networks of communities unhindered by geography. While this brought many advantages to those who were able to access the Internet and participate, it has also left many people behind.⁵ The gap between those who have access to the Internet and those who do not has become known over the last two decades as the ‘digital divide.’⁶

It has been argued that Internet access deserves human rights protection, in part because Internet access affects how individuals exercise their already-established rights, and in part because of the increasingly important impact that the Internet has on individuals and society. Scholarship on the impact of the Internet has become much more nuanced since the first generation of such work in the 1990s, which has been noted for its utopian view of the Internet’s democratizing powers.⁷ In addition to its benefits, there is also now considerable debate on the harm the Internet may have on democratic life and society.⁸ However, there is general agreement in two areas relevant to this book: (i) the Internet’s unique functional features that distinguish it from other media, and (ii) the Internet’s support of applications and content that almost replicate its predecessors, as well as applications and content that do not.⁹ In other words, on the Internet, one can watch something that resembles television, listen to something that resembles radio, read something that resembles a newspaper, and then do things never done on any previous medium. For example, one can send an instantaneous text to individuals or groups (email), broadcast personal messages (blogs, Facebook, Twitter), participate in crowd prioritization of content (e.g., Reddit), and share views (Yelp, Amazon reviews, Facebook, Twitter).

From a human rights perspective, it is significant that the United Nation’s Human Rights Committee (HRC) has formally recognized the Internet’s impact on society and the need to promote access to it.¹⁰ The HRC’s General Comment 34 (GC34) on the Right to Freedom of Expression and Opinion states, ‘There is now a global network for exchanging ideas and opinion that does not necessarily rely on the traditional mass media intermediaries.’¹¹ A year earlier, in 2011, the Special Rapporteur of Freedom of Expression, Frank La Rue, took a much less cautious approach, asserting the unique attributes of the medium and consequently its effect on how individuals and society collectively exchange information.¹² His 2011 SR report states:

Very few if any developments in information technologies have had such a revolutionary effect as the creation of the Internet. Unlike any other medium of communication, such as radio, television and printed publications based on one-way transmission of information, the Internet represents a significant leap forward as an interactive medium. Indeed, with the advent of Web 2.0 services, or intermediary platforms that facilitate participatory information sharing and collaboration in the creation of content, individuals are no longer passive recipients, but also active publishers of information. Such platforms are particularly valuable in countries where there is no independent media, as they enable individuals to share critical views and to find objective information. Furthermore, producers of traditional media can also use the Internet to greatly expand their audiences at nominal cost. More generally, by enabling individuals to exchange information and ideas instantaneously and inexpensively across national borders, the Internet allows access to information and knowledge that was previously unattainable. This, in turn, contributes to the discovery of the truth and progress of society as a whole.¹³

Furthermore, he argues that the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) were written with the foresight to include new mediums through which individuals exercise their right to freedom of expression.¹⁴ While some might rightly be critical of Frank La Rue’s extremely optimistic viewpoint about the benefits of the Internet, the medium is without a doubt important. Hence, as La Rue argues, the framework of international human rights law remains relevant today and equally applicable to the Internet.¹⁵ This assertion supports legal scholarship on interpreting freedom of expression guarantees to include new information technologies, such as the Internet, as well as GC34.¹⁶ However, it is still too early to tell the possible scope and content of these protections and whether they will be sufficient for those on the ‘wrong side’ of the digital divide.

1.1 Scope of the book

The scope of this book is defined by three elements:

• Understanding what might be meant by ‘access to the Internet’ within the context of the international human rights legal framework.
• Identifying the elements present in the ‘right to access the Internet’ debate that are in line with existing jurisprudence of international human rights monitoring bodies.
• Evaluating how important elements of providing access to the Internet that are outside the current scope of a right to Internet access might still be included rights-based development frameworks.

There are popular debates around whether access to the Internet is a human right in and of itself, part of already-existing freedom of expression guarantees, or not a right at all.¹⁷ A handful of countries in Europe and Latin America have codified access to the Internet as universal service obligations or constitutional guarantees.¹⁸ Currently, this emerging State practice is small but significant enough to serve as part of the basis, inter alia, for why this book chooses to focus its examination on the European and Inter-American human rights monitoring systems. This choice in methodology will be discussed later. However, it is important to note this emerging, but relatively small, State practice here, because these developments are not addressed in this book. Instead, this book focusses on how existing international human rights frameworks, in particular the freedom of expression framework, currently and possibly further in the future, could support a right to access the Internet.

As De Hert and Kloza conclude but do not address substantively:

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 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.¹⁹

De Hert and Kloza interchange their use of a right to access the Internet and means to protect the use of the Internet. They do this without defining explicitly whether they interpret these two phrases to have the same meaning. The lack of definitional clarity here illustrates a broader definitional challenge with current debate around a right to access the Internet which will be discussed later in this chapter. The central focus of this book, with respect to the digital divide, is identifying what part of digital inclusion guarantees are already protected and how are they protected. This analysis will also identify guarantees that are not currently protected but might be in the future.

In this regard, both the GC34 and the 2011 SR report encourage States to ensure access to the Internet, providing a very basic but necessary starting point for this book. The GC34 will be especially helpful in clarifying the compatibility of possible access restrictions to online content and applications, which will be examined in Chapter 3.²⁰ The 2011 SR Report articulates a need to broaden the scope and content of freedom of expression in order to address inequalities of access.²¹ According to the report, the elements of Internet access needed to address these inequalities relate to infrastructure, access to relevant content, and Internet literacy skills. The report states:

Given that the Internet has become an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the Internet should be a priority for all States. Each State should thus develop a concrete and effective policy, in consultation with individuals from all sections of society, including the private sector and relevant Government ministries, to make the Internet widely available, accessible and affordable to all segments of population.²²

In regard to ensuring access to relevant online content, the 2011 SR Report asserts that States should:

support initiatives to ensure that online information can be accessed in a meaningful way by all sectors of the population, including persons with disabilities and persons belon...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Table of cases
• List of abbreviations
• 1 General introduction
• 2 The historical context of international debates on a right to access to information technology and digital divide guarantees
• 3 Negative obligations
• 4 Positive obligations to facilitate access to the Internet
• 5 Looking outside freedom of expression to strengthen digital inclusion guarantees
• 6 Case study in digital inclusion
• 7 Conclusions
• Bibliography
• Index