HUMAN RIGHTS

Access to the Internet as a human right

By Jordan Cox, solicitor, Webb Henderson

The Internet isn’t typically thought of as a human right. Communication network? Of course. Research tool? Sure. Procrastination-inducing sinkhole? Well, maybe. But a human right? A recent poll for the BBC World Service has suggested that close to four out of five people believe that access to the Internet is a “fundamental right”. The results of the survey, which questioned more than 27,000 adults across 26 countries, are consistent with a growing trend internationally to recognise that access to the Internet could, or should, be recognised as a human right.

The view that access to the Internet is a human right has been accepted by a number of countries and international organisations, including the United States, France, Finland, Estonia and Greece, as well as the United Nations, European Parliament, and International Telecommunications Union. The practical effect of that acceptance differs, however. Broadly, there appear to be two approaches. The right to access the Internet has been treated as:

• An extension of the right to freedom of expression. This view takes a narrow approach, and treats the right to access the Internet as a manifestation of the existing right to freely express and receive information and opinions. Governments should tread carefully when taking any action which could constrain or negatively affect the ability of citizens to access the Internet.
• A new and separate right. This is a broader view, which believes the Internet has moved beyond a mere conduit for communication, and is now an indispensable part of day-to-day life. Furthermore, this view sees the Government as being subject to a positive obligation to ensure citizens have the ability to access the Internet.

This issue has received little attention in New Zealand. Although the right to freedom of expression is well established, there has been minimal consideration about whether this freedom of expression may encompass a right to access the Internet; let alone whether a separate right to access the Internet might exist.

Access to the Internet as an extension of the freedom of expression
Under section 14 of the New Zealand Bill of Rights Act 1990 (NZBORA), individuals have “the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”.

It is trite, but relevant, to reaffirm the tremendous effect the Internet has played in facilitating and promoting communication. In her recent speech on Internet freedom, United States Secretary of State Hilary Clinton noted that freedom of expression “is no longer defined solely by whether citizens can go into the town square and criticise their government without fear of retribution. Blogs, emails, social networks and text messages have opened up new forums for exchanging ideas.”

The well-documented shift to ‘Web 2.0’ – that is, the rise of websites that encourage information-sharing and user-generated content – can also be seen as consistent with section 14’s acknowledgement that freedom of expression has a symmetrical element; it requires (to borrow an Internet term) both downstream and upstream transmission. The Internet has always facilitated the seeking and receiving of information and opinions. But now, thanks to the participation-promoting ethos of Web 2.0, the Internet is now just as relevant to the imparting of information and opinions.

So, if we accept that access to the Internet can be viewed as forming part of an individual’s freedom of expression, what consequences might this have? The freedom of expression is a negative right (Mendelssohn v A-G [1999] 2 NZLR 268 at 273). It does not impose a positive duty on the state; it affirms a freedom held by an individual which the state should not breach. Recognising access to the Internet as a component of freedom of expression would not impose on the state any obligation to ensure New Zealanders could access the Internet; it would merely act as a barrier (within the context of sections 4-6 of the NZBORA) to the state taking any action which would restrict or remove the freedom of individuals to access the Internet.

The debate over the soon-to-be-repealed section 92A of the Copyright Act 1994 illustrates the practical implications of this development. The most controversial aspect of section 92A, which aimed to deter online copyright infringement, was the possibility of Internet users’ accounts being terminated, potentially without judicial oversight. This raised significant concerns that the users’ freedom of expression was being restricted in a disproportionate fashion.

The new Copyright (Infringing File Sharing) Amendment Bill (Bill) attempts to address these concerns by providing that only the District Court may order account termination. The Ministry of Justice’s advice to the Attorney-General on the Bill’s consistency with NZBORA notes at paragraph 5 that “temporary suspension of Internet access will limit an account holder’s freedom of expression”. The Cabinet Paper preceding the Bill also noted at paragraph 93 that “suspension of an Internet account could be inconsistent with the freedom to seek, receive and impart information and opinions of any kind in any form”.

Access to the Internet as a new and separate right
An alternative approach to viewing Internet access as a right is the concept that access to the Internet constitutes a new and separate right, independent from the right to freedom of expression. Under this approach, the Internet represents a transformative and indispensable service, above and beyond a mere facilitator of freedom of expression. In this sense, the Internet is seen as an essential utility, similar to water or power.

This view may be best seen as recognising an economic and social right, similar to the right to housing, education, and health care. The NZBORA does not include economic and social rights. At the time of the NZBORA’s introduction, the Government considered that these rights were non-justiciable, and best managed by the political, not judicial, process. These considerations are likely to apply if access to the Internet is recognised as a new and separate right.

This alternative approach would also differ from an extension of the right to freedom of expression, in that, internationally, it appears to be treated as a positive right: a right which the Government is actively required to promote. In Mendelssohn v A-G, the Court of Appeal described these positive rights: “[O]ther parts of the Bill of Rights do expressly impose on branches of the state positive obligations to act. That is especially so of rights in respect of the criminal justice system: for instance to be informed of certain rights, including the right to legal services, to be charged promptly, to receive legal aid in appropriate cases, to be tried without undue delay and especially to have a fair trial.” Any positive right to access the Internet would be an ill fit with these criminal justice-focused rights.

If, despite the above, the Government did treat access to the Internet as a positive right, what might this look like in practice? Finland offers a close precedent. In October 2009, the Finnish Ministry of Transport and Communications issued a Decree on the Minimum Rate of a Functional Internet Access as a Universal Service (732/2009), the effect of which is to require all universal service operators to provide reasonably priced (ie not free) broadband access with an average downstream rate of at least 1 Mb/s to every permanent residence and permanent office of business or public administration body by July 2010.

In effect, by defining broadband as a universal service, the Finnish government has raised broadband to the New Zealand equivalent of free local calling; it is a service that the Finnish government has recognised as a “necessary tool in day-to-day life”. Still, it may be a stretch to elevate a necessary tool for day-to-day life, even one recognised as such by the government, to the level of a human right.

New Zealand could potentially follow Finland. Under the Telecommunications Act 2001, the Governor General may, by Order in Council made on the recommendation of the Minister of Communications, declare an instrument between the Crown and a service provider relating to the supply of telecommunications services to end-users to be a “TSO Instrument”. For example, the “local residential telephone service” is currently a TSO Instrument: this is why New Zealanders enjoy free local calls. It would be relatively simple, procedurally at least, to declare broadband a TSO Instrument. It should be noted, however, that the TSO is funded by telecommunications operators; not the state.

This appears unlikely to occur, however. The Government has recently announced plans to reform the existing Local Service TSO, but expressly rejected including a broadband service.

The Government has been proactive in promoting nationwide access to broadband with its Ultra-fast Broadband Initiative aimed at cities and large towns, and the Rural Broadband Initiative aimed at the remaining 25 per cent of the population. However, the Government’s decision to promote access to broadband is political, not rights-based.

Ultimately, the first approach – recognising the role Internet access plays in freedom of expression – appears to be the more appropriate path for New Zealand to follow. It would sit well within the existing NZBORA framework, and would protect Internet access without imposing an onerous burden on the state or telecommunications operators.

The views expressed in this article belong to the author, and are not necessarily those of Webb Henderson or its clients.

NZLawyer, issue 135, 30 April 2010