B Explanatory
memorandum by Ms Pelkonen, rapporteur
1 Introduction
1. Having tabled a motion on the right to Internet access
(
Doc. 12985), I was appointed rapporteur on this subject by the
Committee on Culture, Science, Education and Media of the Parliamentary
Assembly on 2 October 2012. On 30 November 2012, the Assembly’s
Bureau mandated me also to take into account the motion for the
promotion of media content on the Internet (
Doc. 13014).
2. In close co-operation with me, Ms Riikka Koulu from the University
of Helsinki prepared a substantial background report for the Committee
on Culture, Science, Education and Media (document AS/Cult (2012) 08) and
presented it to the committee in Paris on 11 March 2013. This report
serves as the substantial part of this explanatory memorandum.
3. I am particularly grateful to Ms Koulu, as well as to Professor
Wolfgang Schulz from the Hans Bredow Institute in Hamburg and Mr
Abel Caine, Programme specialist from the Communication and Information Sector
at UNESCO, all of whom participated in an exchange of views with
the committee on that occasion.
4. Speaking on behalf of the Finnish delegation to the Council
of Europe’s Conference of Ministers responsible for media and information
society in Belgrade on 7 November 2013, I reported on this work
and had an exchange of views with other participants in the ministerial
session I on “Access to the Internet and fundamental rights”.
5. Having put elements for a draft resolution for public consultation
on the Facebook website
Note in November 2013, I received little
feedback. This may be due to the fact that Facebook is a social
platform for more spontaneous discussions. However, it is interesting
to note that Mark Zuckerberg, the founder and CEO of Facebook, has
launched an initiative for universal access to the Internet.
NoteNote I also sent the draft elements
for a resolution to various stakeholders, including the European
Internet Service Providers Association (Brussels), the International
Chamber of Commerce (Paris), Facebook and ARTICLE 19 (London). I
am very grateful for the constructive reply by ARTICLE 19.
2 The relevance
of Internet access for individuals and society
2.1 Growing importance
of Internet
6. In the 21st century, Internet has become a central
part of everyday life for its 2.4 billion users worldwide.
Note Defining Internet comprehensively
requires understanding its social significance and possibilities,
but as a working technical definition Internet can be described
as networks of computers and servers linked together by globally
standardised protocols enabling high-level data transfer between
the computers.
Note Wide-spread consensus
exists that Internet is a unique medium in comparison to other forms
of mass media.
7. Internet access has transformed from a communication forum
accessible only to a selected few into a mainstream medium for managing
banking, health care, work and administrative issues. What these
changes specifically entail is difficult to decipher as the transition
into information society is still work in progress in many European
countries. The level and pace of technological progress varies substantially
from country to country. In the forerunner countries, such as Scandinavia,
almost all households have Internet access, whereas in other European
countries the broadband penetration rate does not extend to the
same level. There is a digital divide between different geographic
areas and countries. The stage of development affects the ways technology impacts
society and Scandinavian countries and other countries of high technology
therefore reflect possible future progress in other countries as
well.
8. However, it is evident already at this point that the adoption
of information and communication technology (ICT) has permanent
and far-reaching consequences on society and that this development
cannot be reversed. The historical change brought about by the emergence
of new media and computer networks cannot be reduced only to technical
terms, as such an approach would disregard the societal changes. Individuals
depend increasingly on computer networks such as Internet. Most
notably, the role of Internet in everyday life connects with digitisation
of data which enables the relay of high volumes of data with no
(or very low) costs. This creates the possibility for individuals
and other actors to participate in context production at the same
time as consumers and providers (user generated content, interactivity).
Note This
transformation of mass media also carries vast economic importance.
9. The range of public and private “e-services” (electronic services
utilising ICT) is proliferating rapidly and, in some cases, even
replacing the existing, traditional services. The transformative
power of Internet is based on the low threshold, real time possibility
to distribute data from one-to-many regardless of national borders and
without central control. Online applications have become intertwined
with traditional everyday practices. Such applications include,
among others, online banking (managing bank transactions or checking
account information online),
Note e-commerce (sale and
trade of material or immaterial goods online, consumer protection online),
Note and e-work (remote
work where employees work without commuting to the work place with
the help of ICT). Of growing importance is also e-health, technology-supported
public or private health care, which, in the wide sense, includes
patient data management as well as online consultation with health-care
personnel, and online applications designed for rehabilitative health
care.
10. In addition to this, governmental organisations and public
services are increasingly going online. E-government refers to interaction
between government officials and citizens or enterprises conducted
online.
Note One aspect of e-government
is government action to promote e-services such as electronic communication between
individuals and courts (e-justice), applying for social and other
benefits online, and participation in governance through computer
networks. One of the most far-reaching e-government applications
is electronic voting piloted in Finland.
Note Another perspective of the relevance
of Internet access to democratic society are the new forms of participation
in policy making (e-participation). In addition to grass-root level
Internet activism of non-governmental organisations (NGOs), also
government-encouraged methods of participation are increasingly
brought to public attention via the Internet. In Finland, the Ministry
of Justice has enabled participation by launching an online service
for citizens’ initiatives. Through this service, individuals can
have their bill or proposal to start a bill drafting process considered
by the parliament.
Note Such services and channels of influence
can increase civic activity, participation and voice in local decision-making
and thus strengthen democratic civic society (e-democracy). However,
lack of equality in Internet access can cause exclusion of some
groups from this development.
11. As is evident from such examples, Internet has become a crucial
commodity not only for facilitating commerce or communication but
for using basic public and private services such as banking, health-care
or welfare services. In addition to such functions, Internet has
already become a method for participation and offers possibilities
to increase civic influence in a democratic society. The indispensable
role Internet has in modern society is further emphasised as both
governments
Note and international actors such as
the European Union
Note promote the use of online services.
12. It is noteworthy that Internet as such is neither good nor
bad, but instead can be used for contradictory ends. Internet’s
nature as an interactive medium of communication does not directly
mean that Internet should be regarded one-sidedly and merely as
an enabler of rights or as a potential venue for violations of rights. Internet
has the potential to significantly increase participation and to
facilitate freedom of expression. However, at the same time, these
rights can be misused online and Internet can be turned into an
instrument for censorship, surveillance or cybercrime. In comparison
with traditional media, the advantages for civic society and anxieties
of misuse can both be seen to be more considerable on the Internet,
due to the interactivity. In conclusion, Internet infrastructure per se cannot be declared as pro or contra human
rights, but should be seen as a neutral medium which can be used
for conflicting purposes.
2.2 Acknowledging Internet
access as a right
13. At present, the prevailing opinion is that access
to Internet should be recognised as a fundamental right. In the
following section, this consensus will be presented in more detail
by emphasising national broadband policies, the European Union agenda,
national case law and public opinion. The consensus is starting
to form through actions and discussions of several governments,
international actors such as the United Nations, the European Union,
the Organization for Security and Co-operation in Europe (OSCE),
Note the Committee of Ministers of the
Council of Europe
Note, the International Telecommunications
Union (ITU), as well as of Internet stakeholders and private individuals.
These actions include recognising the importance of Internet for
freedom of expression,
Note promoting the public service value
of Internet and adopting broadband policies to this end, and the
gradual emergence of case law from the national and international
courts.
14. Criticism is nevertheless voiced about regarding Internet
access as a human right. One of the most cogent reviews has been
presented by Vint Cerf, who is often presented as one of the creators
of Internet. Cerf stated in a
New York
Times opinion that “Technology is an enabler of rights,
not a right itself”. Cerf noted that Internet is an important means
to an end, creating new possibilities for people to exercise their
human rights. However, according to Cerf, acknowledging access to
Internet as a universal service comes close to regarding access
as a civic right.
Note As a response to Cerf’s opinion,
Amnesty International USA has noted that Cerf’s view of human rights
is particularly narrow and tantamount to contesting physical access
to a town square as a human right without understanding that such
access is inseparable from the right of association and expression.
Note
15. In any case, these two arguments should be conceptually separated
from one another: Internet access as a human right per se on the one hand and Internet
access as an indispensable enabler of human rights on the other.
Although it can be disputed whether Internet is per se a human right, it is often
recognised that Internet is a crucial tool for exercising human
rights. The latter is also the point of origin in the United Nations Special
Rapporteur’s report discussed below.
16. Because of the central functions and possibilities of Internet,
several countries have acknowledged that access to Internet has
become a focal tool for exercising freedom of speech and opinion
and thus requires protection as a fundamental human right.
As of 2011, national policies for
promoting broadband access had been adopted in more than 100 countries
worldwide.
Note Also, agencies such as the Broadband
Commission for Digital Development, joint project of the ITU and
the United Nations Educational, Scientific and Cultural Organization
(UNESCO), promote broadband policy making.
Note
17. The European Union has recognised access to Internet as a
universal service in Universal Service Directive (2002/22/EC) on
universal service and user’s rights relating to electronic communications
networks and services. The directive obliges member States to ensure
that requests for connection at a fixed location to the public telephone
network are fulfilled. According to Article 4.2, “The connection
provided shall be capable of allowing end-users to make and receive
local, national and international telephone calls, facsimile communications
and data communications, at data rates that are
sufficient to permit functional Internet access, taking
into account prevailing technologies used by the majority of subscribers
and technological feasibility” [emphasis added].
18. The implementation of the directive is subject to judicial
review. The European Commission requested the Court of Justice to
fine Portugal for failing to designate telecom providers as universal
service providers in accordance with the Directive. In its judgment
(case C-154/09) of 7 October 2010, the court declared that the Portuguese
Republic had failed to fulfil its obligations as it had not transposed
the obligations into national law and had failed to ensure their
application in practice. On 24 January 2013, the European Commission requested
the court to impose further fines on Portugal, which had still not
fulfilled all of its obligations.
19. National courts have also started to consider Internet access
as a crucial commodity for daily life. The German Federal Court
of Justice (Bundesgerichtshof) came to this conclusion in its recent
decision (III ZR 98/12) on 24 January 2013, as it granted compensation
to a plaintiff who was disconnected from accessing Internet between
December 2008 and February 2009 due to the service provider’s failure
to provide connectivity. The court ruled that access to Internet
had already become of central importance for individuals as it:
offers access to a wide-range of information globally – replacing
traditional media such as television and print media –, and enables
communication between users. In addition, the court recognised that
Internet is increasingly used for transactions, concluding contracts
and fulfilling obligations of public law.
Note
20. The public is also starting to acknowledge access to Internet
as a right. As a global survey conducted for the BBC World Service
in 2009 and 2010 demonstrates, a vast majority of adults (79%) in
the 26 countries participating in the poll stated that access to
Internet should be a fundamental right. It is noteworthy that also 71%
of non-Internet users considered that they should have the right
to access Internet while the corresponding percentage among Internet-users
was 87%. For Internet-users, the most valued uses of Internet included
finding information (47%), interacting and communicating with other
people (32%), and a source of entertainment (12%).
Note As such studies reflect public
opinion, the information is also valuable for policy making.
21. Although several stakeholders have agreed that access to Internet
is to be considered as a human right, it is still unclear how this
access is defined and what it involves. Most statements, travaux préparatoires for universal
services acts and other recommendations emphasise Internet as an
enabler of freedom of expression. This implies that there is an
obligation to provide free access to information (access to content)
and communication without censorship, to participation and social
activism and to the use of online services and e-commerce. However,
many issues have not yet been discussed at all. Depending on the
interpretation regarding definition of access, it could also be
argued that this right includes the right to host a server or use such
access for equivalent purposes.
22. Due to its unique nature, it is widely accepted that access
to Internet cannot be directly compared to traditional forms of
mass media with an ex analogia interpretation.
Especially applications such as social media elude comparison. Regardless
of this, analogy to traditional media could be useful for some uses
of computer networks, for example e-mail. As questions concerning
e-mail (such as privacy of correspondence) are notably similar to
those already examined in relation to traditional mail, discarding
analogy interpretation in its entirety, without case-by-case examination,
is not necessary reasonable.
3 Technical aspects
of Internet access
3.1 Infrastructure
23. As the pace of technology development is especially
rapid, opinions on the right to Internet access rarely take a stand
on the technical realisation of this right. Instead, they leave
it to be decided by the Internet service provider (ISPs) and national
policy makers, according to the available technical possibilities.
In brief, Internet access requires a telecommunications network,
last-mile telecommunication (the access point at the user’s home,
infrastructure), and end equipment (computer, hardware) for accessing
the network. Software is used to administer the hardware. The infrastructure
and last-mile telecommunication can be organised in several ways.
24. It is evident that the available technical options have an
impact on legal regulation as well. However, the relationship between
technology and regulation is two-way, as standardisation determines
the development of technology. The prevailing opinion is that technology
neutrality should be adopted as a starting point in future legislation.
However, some standpoints have been taken, for example by European
Union policy setting and national broadband strategies, all promoting
high-speed broadband bandwidth. Such bandwidth can be achieved by
several technical alternatives or combination of them, wireless
transmitters or wires. For example, in the United Kingdom, broadband
strategy has adopted a mix of technologies combining fixed, wireless
and satellite connections.
Note
25. At this point of development, access to Internet requires
the use of data terminal equipment such as a computer or mobile
telephone. Although Internet access is declared a universal service,
it does not follow from there that the State should provide such
access for free without costs of ISPs or procurement of the end equipment.
However, it has to be taken into consideration that the costs of
Internet access might in themselves be prohibitive for some individuals,
increasing the digital divide in developed countries as well. Consideration should
be given to whether the State should take positive action in order
to provide access through public WLAN (wireless local area network)
connections and public access points through library or other such
public services to those individuals and households that cannot
afford the costs.
26. In its European Broadband Communication, the European Commission
set the objective that by 2020, all Europeans should have access
to Internet of above 30 megabits per second (Mbit/s) and 50% or
more of European households have subscriptions above 100 Mbit/s.
The Commission highlights that optical fibre technology (fibre to
the home, FTTH) should be preferred for last-mile telecommunications
as it can utilise the existing copper network. Optical fibre has
been described as future-proof for the relayed bandwidth is limited mostly
by the end equipment. However, the use of mobile technology for
the last mile communication is constantly on the rise. The Commission
states that also next-generation terrestrial wireless services as
well as satellite connection, if further development is undertaken,
will be able to reach the target bandwidth. The European Union objective
is very ambitious and calls for active member State action. However,
the halfway objective adopted as a part of the Finnish Broadband
2015 Strategy, securing the minimum bandwidth of 1 Mbit/s, is sufficient
for accessing most Internet services effectively.
27. Funding the development of Internet infrastructure is one
of the issues related to the future of Internet. Although the European
Union, for example, provides targeted infrastructure funding at
European level, investments are made and Internet traffic hubs are
run most often by private businesses, ISPs etc. This further highlights
the importance of adopting the multi-stakeholder model in governance
issues.
28. One example of the importance of infrastructure is the role
of Internet Exchange Points (IXPs). They enable Internet traffic
from one operator’s autonomous network to that of another (direct
interconnection) without third-party networks or peering. This makes
data transfer cheaper and faster and more fault-tolerant. IXPs are
governed by non-profit Internet Exchange Point Associations (IXPA)
whose member corporations are national and international ISPs. On
an international level, there are four regional IXPAs for Europe,
Africa, Asia Pacific and Latin America.
3.2 Software
29. It is evident that effective exercise of access to
Internet requires computer literacy in addition to the absence of
restrictions on access and denomination of universal service providers
(USPs). Lack of adequate computer skills prevents certain groups
from taking full advantage of the possibilities of Internet. A “digital divide”
exists between different geographic areas (different continents,
rural/urban areas) – where the term refers to the missing possibilities
of the necessary infrastructure – but also in developed areas where differences
between individual skills, economic abilities, physical disabilities
or age can translate into de facto obstacles
for utilising the potential of Internet services.
30. In the development of software, the role of intermediaries
(such as Internet businesses) is central as adopted software architecture
often directs future user behaviour. For several groups, such as
the elderly and immigrants, the learning curve for using Internet
services has to be set as low as possible. In Finland, for example,
a small eHealth business (Pieni piiri) is offering a collaborative
Internet experience as a method of engaging the elderly in interactive
Internet services, which, in its turn, gives them the necessary
know-how to access other services as well.
31. The future prospects of software development are almost impossible
to predict. However, it is evident that the significance of software
will increase in the future and data will be increasingly stored
on cloud services. Already individual apps have started to gain
ground on traditional Internet browsers and the importance of social
media is highlighted. As a part of this, use of Internet access
will probably become both more tailored and more community-oriented.
Due to insufficient data transfer capacity, earlier software applications
have been text-based, but as the broadband bandwidth becomes customary,
there will be no obstacles to relaying audiovisual information,
which will affect future software infrastructures.
4 Legal norms applicable
to Internet access and use
32. There are several sets of rules that affect the evaluation
of Internet access and its use. Most of these norms are founded
by binding international instruments. However, such instruments
have been enacted for very different purposes. It is necessary to
differentiate the norms that regulate the human rights perspective
of Internet access from the norms regulating the technical aspects:
how such access is used, what technical standards are in place for
the necessary interoperability and how restrictions on content are
imposed. The technical solutions nevertheless affect the recognition
and interpretation of the human rights perspective as they substantially
affect the way Internet is developed and used. In addition to international
regulation of human rights and technical standards, there are also
the national legislations which might impose specific technical requirements
or rights for citizens. All in all, the legal norms applicable to
Internet are diverse and fragmented between different fields.
4.1 United Nations
33. As stated above, the freedom of opinion and expression
is one of the central human rights connected with the use of the
Internet. Freedom of expression is protected under Article 19 of
the International Covenant on Civil and Political Rights (ICCPR)
adopted by the United Nations General Assembly on 16 December 1966. The
treaty has 74 signatories and 167 Parties and its implementation
is monitored by Human Rights Committee through a reporting procedure,
the examination of individual complaints and the publication of
general comments on the interpretation of the ICCPR. Article 19
of the ICCPR decrees freedom of opinion and expression to include
first, the right to hold opinions, and second, the right to seek,
receive and impart information and ideas of all kinds through any
media. According to Article 19, this freedom carries with it special duties
and responsibilities and therefore it may be subjected to a restriction
regulated by law and necessary for the respect of rights or reputations
of others or for the protection of national security, public order
(ordre public) or public health or morals.
34. In 2011, the Human Rights Committee has addressed new media
in its General Comment No. 34, stating that:
“States parties should take account of the extent to which
developments in information and communication technologies, such
as internet and mobile based electronic information dissemination systems,
have substantially changed communication practices around the world.
There is now a global network for exchanging ideas and opinions
that does not necessarily rely on the traditional mass media intermediaries.
States parties should take all necessary steps to foster the independence
of these new media and to ensure access of individuals thereto.”Note
35. An important step towards recognising access to Internet was
taken when the United Nations Special Rapporteur on promotion and
protection of the right to freedom of opinion and expression, Frank
La Rue, submitted his report to the Human Rights Council on 16 May
2011. In his report, the Special Rapporteur concluded that access
to Internet was a key means of exercising freedom of opinion and
expression. He states that:
“The
right to freedom of expression is as much a fundamental right on
its own accord as it is an ‘enabler’ of other rights, including
economic, social and cultural rights, such as the right to education
and the right to take part in cultural right and to enjoy the benefits
of scientific progress and its applications, as well as civil and
political rights, such as the rights to freedom of association and
assembly. Thus, by acting as a catalyst for individuals to exercise
their right to freedom of opinion and expression, the Internet also facilitates
the realization of a range of other human rights.”
36. Most of the observations and recommendations presented by
the Special Rapporteur are pertinent in the European context as
well. Especially important points of the United Nations report are:
first, the critical attitude adopted towards all restrictions on
content; second, its demands for applying cumulative criteria to
all restrictions; and third, the insistence on transparency. The
Special Rapporteur demands that restrictions on Internet content
are evaluated by an independent body using the three-part, cumulative
restriction criteria regulated in Article 19.3 of the ICCPR (regulated
by law, for specific purposes, necessary). Sufficient legal remedies
should be made available. He calls for more transparency in situations
where a State uses blocking or filtering mechanisms and points out
that legitimate online expression is in practice criminalised by
applying laws on defamation, national security and terrorism which,
in fact, aim to censor content. The Special Rapporteur calls for
State action to ensure access to Internet at all times and considers
disconnection of users from Internet as interference with constitutional
rights, regardless of the ground for such action. This includes suspension
based on copyright infringements, which suspensions he regards as
disproportionate and, as such, a violation of freedom of expression.
This is a remarkably strong statement, which I will discuss below.
4.2 Council of Europe
37. Freedom of expression is provided for in Article
10 of the European Convention on Human Rights, drafted by the Council
of Europe and opened for signature on 4 November 1950. In total,
47 countries have ratified the treaty. The Convention defines freedom
of expression in a similar manner as the ICCPR. According to Article
10 of the Convention, freedom of expression includes: i) freedom
to hold opinions; and ii) freedom to receive and impart information
and ideas without interference by public authority and regardless
of frontiers. Freedom of expression may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention
of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing
the disclosure of information received in confidence, or for maintaining
the authority and impartiality of the judiciary.
38. The European Court of Human Rights (“the Court”) has not yet
directly evaluated access to Internet from a human rights perspective
and, therefore, exact rules for interpretation cannot be found in
the Court’s case law. However, pending cases concern refusal of
prison authorities to give a convicted prisoner access to Internet
(alleged violation of Article 10, Jankovskis
v. Lithuania, Application No. 21575/08) and a news portal’s liability
for defamatory comments posted on it (alleged violation of Article
10, Delfi As v. Estonia, Application No.
64569/09). Tangential cases have also already been evaluated by
the Court.
39. In the Editorial Board of Pravoye
Delo and Shtekel v. Ukraine case, the Court unanimously
ruled that there had been a violation of Article 10 of the Convention,
as the Ukrainian law did not provide safeguards for journalists
publishing materials obtained from the Internet, although immunity
from civil liability was granted to journalists using verbatim citations
published in the press. The applicants, the editorial board and
editor-in-chief of a newspaper, had published an anonymous letter
downloaded from a website. Although the newspaper had provided the
reference to the Internet source and a disclaimer stating that the
information was not necessarily correct, the national court found
the applicants liable on the basis of defamation. The European Court
of Human Rights declared that such liability for reproduction of
Internet material violated the journalists’ freedom of expression.
40. In K.U. v. Finland,
the Court declared that there had been a violation of Article 8
(the right to respect for private and family life), as the Finnish
legislature did not provide a framework for reconciling the confidentiality of
Internet services and the protection of others. The Court pointed
out that, although it is understandable that regulation in information
society falls behind due to the pace of technology development,
the Finnish legislator should have been able to provide for the
necessary safeguards in 1999 when the initial incident had taken place.
Although such protection was subsequently created, the national
legislation had failed to provide sufficient protection for the
applicant, whose right to privacy had been violated.
41. In Ahmed Yildirim v. Turkey,
the Court ruled that there had been a violation of freedom of expression
as a national court had ordered the blocking of access to Google
Sites, which hosted a website whose owner had been accused of defamation
of Atatürk. Based on the court decision, access to all other sites
hosted by Google Sites was blocked as well.
42. In Ashby Donald and Others v. France,
the Court ruled that there had been a violation of the freedom of expression
as the national court had convicted three fashion photographers
for copyright infringement. The national court had found that there
had been an infringement as two of the defendants published on their website
photos taken at fashion shows by the third defendant without the
consent of the fashion shows concerned.
43. The Council of Europe has also adopted other treaties that
are relevant to access to Internet. The Convention on Cybercrime
(ETS No. 185) and the Convention on Data Protection (ETS No. 108)
are important treaties regulating the use of Internet access and
providing for protection of Internet users. The Convention on Cybercrime,
which came into force in 2004, is the only international and binding
instrument on cybercrime. The Treaty provides States with guidelines
for the development of legislation against organised crime such
as terrorism, paedophile networks, child pornography and computer
frauds.
44. Adopted in 1981, the Convention on Data Protection is the
only binding legal instrument concerning privacy and it sets minimum
standards for the level of protection and harmonisation. Due to
the growing concern about surveillance and profiling on the Internet
and other data protection issues, an updated draft of the convention
will be examined by an intergovernmental Council of Europe committee
in 2014 before being submitted to the Committee of Ministers.
4.3 Contextuality of
relevant human rights in relation to Internet access
45. The prevailing opinion is that access to the Internet
is particularly central for freedom of expression and should be
provided for as a civic and political right. This doctrinal choice
has been made in Frank La Rue’s report (see paragraph 31) and in
several other documents. However, access to Internet and use of
political freedoms online should be separated from the question
of how this access is guaranteed. The widely adopted practice is
that telecom providers are designated as universal service providers
and obligated to provide sufficient Internet access. The right to
enter into a contract with a telecom provider in order to receive
the universal service has to be evaluated separately from State
obligations. The following graph clarifies the relationships and
obligations between the different parties.
46. Incongruity between traditional media and the Internet
renders ex analogia useless
as an interpretation method. This also affects the question of which
human right applies to the Internet. Although freedom of expression
is the human right most often connected with access to Internet,
other human rights might become relevant depending on the context
and interpretative issues. In different contexts, access to Internet
could be evaluated through other rights as well, for example the
right to education (e.g. use of licenced educational material) or
as a part of fair trial (e.g. in online dispute resolutions or technology-enhanced
trials). A growing number of national courts are relying on Internet
access in their case management and expect Internet capabilities
from the parties and their representatives as well (e.g. Finnish
legal aid appliances, lower court fees for e-claims, etc.), raising
the questions of due process and equality of arms. The implications
of technology implementation in dispute resolution are one of the
new legal issues arising from Internet and further research on the
matter is therefore necessary.
47. It is noteworthy that the context defines the relevant human
rights and this might have implications on the obligations placed
to the parties involved, on the contracting States on the one hand
and on Internet intermediaries on the other. This is to say that,
according to the human rights doctrine, civil and political rights entail
obligations going further than economic, social and cultural rights.
4.4 Rights of Internet
users
48. The rights of Internet users should be provided for
and the same level of legal protection guaranteed online as offline.
To this end, the European Union has published the Code of EU Online
Rights as a part of the Digital Agenda for Europe. The code includes
rights and principles i) applicable to access and use of online services,
ii) applicable to the purchase of goods and services online and
iii) providing protection in case of conflict.
Note
49. As the United Nations Special Rapporteur states, the responsibility
of intermediaries in securing freedom of expression is important
and thus, they should “only implement restrictions on these rights
[freedom of expression] after judicial intervention; be transparent
to the user involved about measures taken, and where applicable
to the wider public; provide, if possible, forewarning to users
before the implementation of restrictive measures; and minimise
the impact of restrictions strictly to the content involved”. The
prevailing opinion concerning the rights of users is that, in addition
to providing the necessary safeguards through regulation, also effective
legal remedies must be guaranteed. These effective remedies include
appeal procedures provided by the intermediary as well as judicial
review.
4.5 Standardisation
50. The regulation of Internet is not only a legal and
political issue, but a technical one as well. Securing interoperability
also in the future is elemental for the future use of the Internet;
this is achieved by continuous standardisation work. The United
Nations International Telecommunication Union (ITU) strives for standardisation
of ICT infrastructure to overcome technical barriers and to ensure
accessibility, seamless global communication and interoperability
between operators and technical networks. As of 2011, ITU had already
given over 3 000 recommendations, including standardisation of broadband
access, fibre optic transport, cabling, PONs (passive optical networks)
and fixed-mobile convergence. Further standardisation work by the
ITU is crucial for overall network operation.
51. On 14 December 2012, the ITU convened the World Conference on International
Telecommunications (WCIT-12) in Dubai, United Arab Emirates. The
conference reviewed the International Communication Regulations
(ITRs) and a binding treaty for the facilitation of interoperability
was approved and presented for signature in the final acts of the
WCIT. The treaty: i) establishes general principles relating to
the provision and operation of international telecoms; ii) aims
to facilitate global interconnection and interoperability; iii)
promotes harmonious development and efficient operation of technical
facilities; and iv) promotes efficiency, usefulness, and availability
of international telecommunication services.
52. These technical issues also have important human rights aspects.
A key point discussed at WCIT was the future governance of Internet.
The participants discussed whether ITU should take a more decisive
role in regulating Internet by introducing a regulatory framework
for controlling it. Although no such mandate was given to ITU in
the final acts, a non-binding resolution was adopted in the appendix.
This created controversy as some critics considered that it would
enable the ITU to control Internet content later on and thus disturb
the free flow of information. Because of this, more than half of
ITU member States did not sign the treaty, among them all European
Union member States and the United States. On 14 December 2012,
the European Commission published a memorandum stating that the
European Union member States remained 100% committed to open Internet
in the future. According to the Commission, the final acts risked
threatening the future of the open Internet and Internet freedoms.
Note
53. However, the ITU has recognised the right to communications
as a human right already based on the earlier ITRs.
Note The final acts accepted in Melbourne
in 1988 (WATTC-88) have been approved by 190 countries including
the European Union member States and the United States. Article
3.4 of the final acts states that “subject to national law, any
user, by having access to the international network established
by an administration, has the right to send traffic. A satisfactory
quality of service should be maintained to the greatest extent practicable,
corresponding to relevant CCITT Recommendations”.
54. The European Commission has identified lack of interoperability
as one of the most significant obstacles to exploiting technology.
In the Digital Agenda for Europe, the Commission has listed actions
for promoting standard setting in the European Union. These actions
include the promotion of standard-setting rules, guidance on standardisation
and the adoption of a European Interoperability Strategy and Framework
(EIF). The EIF is a collection of recommendations that define how
administrations, businesses and citizens communicate with each other
regardless of member State borders.
55. The ministerial declarations adopted in Malmö and Granada
commit to creating a single digital market in the European Union.
To this end, public administrations should promote open standard
and interoperability between national and European frameworks and
develop more efficient interoperable public services. The European
Commission has also harmonised the use of the 3 400-3 800 MHz frequency
band for terrestrial systems capable of providing electronic communications
services in the Community (2008/411/EC). It is probable that the
importance of European Union standardisation will increase in the
future.
4.6 Governance of Internet
domain names
56. Governance and control over Internet domain names
is carried out by the private non-profit organisation The Internet
Corporation for Assigned Names and Numbers (ICANN) based in the
United States. ICANN organises the distribution of unique Internet
Protocol (IP) address spaces to the five regional Internet registries
Note which, in their
turn, manage allocation and registration for specific geographic
regions. ICANN protects the stability and operability of global
Internet by co-ordinating the domain name system. In order to resolve
domain name conflicts, ICANN has established its own dispute resolution
model called the Uniform Dispute Resolution Policy (UDRP) in co-operation
with the World Intellectual Property Organisation (WIPO). Because,
in the end, ICANN is a private organisation entrusted with responsibilities
of public interest, it has been criticised for lack of adequate
accountability mechanisms.
Note
4.7 Broader obligations
for the State
57. The human rights perspective of Internet access creates
obligations for the States that can be carried out in several ways.
As the national broadband policies demonstrate, promotion of broadband
as a necessary commodity is often depicted as a practical way of
implementing the right to Internet access. For example, on 4 December
2008, the Finnish Government launched the “Broadband 2015 project”.
The objective of the Broadband project is that in 2015, more than
99% of the population are no further than two kilometres from a 100 Mbit/s
fibre-optic or cable network. This enables the consumers to obtain
Internet connection from telecom operators, at their own expense.
Note
58. All individuals and businesses in Finland are considered to
have the right to high-speed Internet access in their place of residence.
Amendment of section 60.c of the Communications Market Act (393/2003),
which came into force on 1 July 2009, enacts that certain telecom
operators have the obligation to provide the public with an appropriate
Internet access, regardless of their place of residence, but taking
into consideration the connection speed available to the majority,
technical realisation and costs. Based on the amendment, the Finnish
Communications Regulatory Authority designated 26 telecom operators
as universal service providers (USPs) of Internet access. These
USPs have the obligation to offer Internet access in their specific
geographic areas of operation. The decision came into force on 1
July 2010. The Finnish legislator has also decreed the speed requirement
for an appropriate access. As the Finnish Communications Regulatory
states, technology requirements and level of appropriate technology
might vary depending on the development level, which is one of the
reasons why the provisional speed requirement of broadband speed
(1 Mbit/s) for incoming traffic is regulated by a decree of Ministry
of Traffic and Communications.
Note The Finnish broadband model gives
other countries valuable information on the practical issues of
implementing broadband strategies.
59. Such regulation on USPs creates obligations for Internet stakeholders.
In Finland, the governmental resolution on the Broadband Project
starts out from technology neutrality and leaves the decisions concerning the
technology used to the USPs’ discretion.
4.8 Governance of Internet
and multi-stakeholder model
60. The governance of Internet involves multiple stakeholders,
such as civil society, private sector businesses, governments and
NGOs, which
de facto co-operate
in policy-making processes. Especially the role of intermediaries
in administering content has evolved significantly and private businesses
have responsibility regarding the rights of Internet users. Consequently,
all stakeholders should be engaged in future policy-making procedures.
The prevailing opinion is that, although the States have the primary
obligations to provide a regulatory framework for Internet, other
Internet stakeholders also have an important role in future policy-making
and governance of Internet.
NoteNote Co-operation and dialogue between
different stakeholders enables openness, transparency and accountability
of adopted policies and enables the responsibilities and roles of
different stakeholders to be taken into account.
61. Companies in the ICT sector are encouraged to partake in multi-stakeholder
models such as the Global Network Initiative, an NGO devoted to
promoting human rights and privacy and preventing censorship on Internet.
This multi-stakeholder initiative was founded in 2008 by the important
gatekeeper corporations Google, Microsoft and Yahoo!. The growing
importance of the multi-stakeholder model as a governance structure
influences future norm-giving and policy-forming.
5 Prominent cases
62. Widely discussed cases related to the right to Internet
access concern protection of intellectual property rights on the
Internet, boycott of services, filtering by the State, censorship,
surveillance and other means of limiting access to Internet or access
to certain content.
63. Sufficient protection of intellectual property rights, particularly
copyright is central to the further development of Internet. However,
the means of providing such protection must not infringe the fundamental rights
provided for in the European Convention on Human Rights and other
human rights instruments. French law aiming at protection of copyright,
namely the HADOPI law has created a lot of controversy. The law, adopted
in 2009, is based on a three-strikes-penalty model, where a government
agency (HADOPI) invokes the policy in repeated copyright infringement
situations at the request of the copyright holder. In the first
stage, an e-mail message is sent to the Internet access subscriber
(based on the IP address) inviting him or her to install a filter
to the connection. If in the following six months the infringement
is repeated, HADOPI invokes the second step of the policy and a
registered letter is sent to the subscriber. If in the following
12 months, the offence is repeated, the third step is invoked and
the Internet service provider is asked to suspend the subscriber’s
Internet connection for a period of between 2 and 12 months while
the subscriber’s obligation to pay for it continues. Judicial review
before a court is allowed in the third stage.
64. The HADOPI law has provoked a lot of debate and the adopted
three strikes policy is often seen as being a penalty in its nature.
This is problematic as the policy is invoked by an administrative
authority instead of an independent court. Considerable doubt has
been expressed as to how due process, separation of powers and presumption
of innocence are safeguarded under the HADOPI system.
Note It
has also been claimed that the suspension of Internet access by
an ISP is a violation of fundamental rights. As stated above, the
United Nations Special Rapporteur always regards such suspension
based on IPR protection as a violation of freedom of expression.
Likewise, the OSCE report on freedom of expression on the Internet
declares that countries should refrain from adopting multiple-strike
policies as they are incompatible with the right to information. Revision
of the HADOPI law is under way and the provisions on cutting Internet
access will be removed.
Note In addition, the European Commission
has declared that in 2014 the review of the European Union framework
for copyright will be completed and, after this, it will be decided
whether legislative reforms are needed.
Note
65. The responsibility of Internet intermediaries is further emphasised
in cases of service boycotts. In these cases, private businesses
operating central services on the Internet decide to ban certain
content from their search results or prevent certain groups from
using their services. An example of such a boycott is the contentious
conflict between Google News and French newspapers originating from
the French print media’s demand that the French Government enact
a law (Lex Google) obliging the search engine to pay for linking their
web pages. Essentially, such demands are based on claims that Google
News receives advertisement revenue belonging to the print media
and on the allegation of Google’s search engine bias as opposed
to the corporation’s supposed net neutrality policy. In response,
Google has threatened to shut out French newspapers from its search
results if such a law is enacted.
Note No prevailing legal opinion on search
engine bias or the possible copyright infringing nature of news
portals has formed as of yet,
Note but
it is clear that the enactment of such a law will have an impact
on the future of content regulation on the Internet, as will the private
settlement between the French newspapers and Google News.
Note On 4 February 2013, the executive chairman,
Eric Schmidt, posted on Google’s business blog that the French President
and Google had reached a private settlement which includes Google
creating a € 60 million Digital Publishing Innovation Fund to support transformative
digital publishing initiatives for French readers. In addition to
this, Google has committed to “help increase their [French publishers]
online revenues using [Google’s] advertising technology”.
Note
66. Another example of service boycotts is provided by PayPal’s
persona non grata policy, which has received widespread criticism.
PayPal is a global corporation providing a service for online money
transfers. There has also been controversy as a result of PayPal
restricting accounts of individual users without prior notice
Note and shutting down the account of
Wikileaks
Note while allegedly allowing racist
organisations such as the KKK to keep theirs.
67. Based on the United Nations Special Rapporteur’s report and
other demands for transparency, it is evident that such boycotts
committed by private intermediaries are problematic as users do
not have sufficient remedies against erroneous decisions. Some of
the services provided by private businesses could be considered
to be indispensable to users. However, when creating regulations
to increase transparency, also the freedom of action of the intermediaries
should be taken into consideration. This is an issue related to
the roles of intermediaries, States and end users.
68. As several States attempt to impose regulations on Internet
or filter content, the question of censorship arises. For example,
the Belarus Government has placed filters to control Internet content
through government-owned Beltelecom, which acts as an information
gateway. According to the OpenNet Initiative, a collaborative project
of three research institutions, government involvement in the media
market induces self-censorship for fear of prosecution.
Note For years, the case of Google China
has been widely discussed in the press as the search engine giant
has fought against the extensive censorship system of China by refusing
to adopt self-censorship on the Chinese market and to filter key
terms such as “human rights” from its search results. According
to the latest news reports, after years of heated debate and partial
compliance with the Chinese Internet censorship laws, Google has
stopped informing its local users that the search results contain
restricted information.
Note Iran, too, has created filters
for Google’s search engine and e-mail service in order to control
its citizens’ access to content. However, the Iranian Government
plans to impose even more far-reaching censorship by creating a
closed domestic intranet for Iran, thus isolating it from the World
Wide Web.
Note
6 Conclusion
69. In conclusion, it can be argued that Internet access
as such is recognised as a freedom for everyone, which is linked
to the universal human rights of freedom of expression and information
as well as of freedom of peaceful assembly. Other universal human
rights are relevant to determine to what extent Internet access is
protected, such as the rights to protection of private life and
protection of property. In addition, universal service obligations
also qualify Internet access by ensuring universal access, namely
access for everyone at a reasonable price and a defined level of
technical quality, irrespective of location. The above draft resolution contains
the operational conclusions of this report.
