Internet access a human right?

This article was published in June 2011 and reflects the regulatory position at that time. For current guidance on this topic, contact Bratby Law or see our latest insights.

Human rights are clearly important. However, (and the watcher is nervous of stepping into Ken Clarke territory here) some are rather more fundamental than others – so I was somewhat bemused to read the recent United Nations ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression’ by Frank La Rue. The report concludes:

“The Special Rapporteur emphasizes that there should be as little restriction as possible to the flow of information via the Internet, except in few, exceptional, and limited circumstances prescribed by international human rights law…” 

and goes on to explore what this means in relation to a number of topics including:

1. Arbitrary blocking or filtering of content on the Internet
2. Criminalization of legitimate expression.
3. Imposition of intermediary liability
4. Disconnecting users from Internet access, including on the basis of intellectual property rights
5. Cyber-attacks
6. Inadequate protection of the right to privacy and data protection

Some of the conclusions are obvious and unobjectionable, but others are rather more controversial.  For example, many rights owners will be dismayed by the conclusion that internet access should never be cut off for those infringing intellectual property rights, whilst network operators will not welcome a reading of the report that could preclude them from undertaking traffic management – even where the purpose is commercial, rather than political censorship. I have previously posted on the topic of net neutrality. Whilst the highly polarised debate in the US has included arguments based around constitutional rights, in Europe (at least so far) the debate has been rather more nuanced recognising that the issue can be characterised as balancing the respective economic interests of the content providers and aggregators on one side and of networks on the other to produce the best outcome for (as Ofcom would say) citizen-consumers. It has not (so far) been a rights based argument. It remains to be seen whether this report will be picked up in the European net neutrality debate by either side of that argument.