This article aims to tackle some of the issues raised by Mr. Vinton Cerf’s editorial, published on the New York Times a few days ago.
The aforementioned op-ed has sparked some heated discussions on whether access to the Internet should be considered a human right or not, and such a debate is far more intriguing because of the particular historical moment that we are living. Indeed, the Arab Spring, more than any other historical turning-point, has shed light on the pivotal role that the freedom to manifest one’s thoughts, communicate and assembly play in order to foster democracy.
Nobody can deny that the Internet has been essential in boosting the North-African revolutions, but does this mean that Internet access should be considered as a human right?
Two sides of the same coin
Opposite positions have been crystalizing around this issue, and the interesting point is that both of them have emerged from the same norm: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.
This rule is enshrined both in Article 19 of the Universal Declaration of Human Rights, a non-binding tool (soft law) of international law, and in Article 19.2 of the United Nations International Covenant on Civil and Political Rights (UN ICCPR), a binding international law tool (hard law).
Internet-access-as-a-human-right supporters use to argue that Article 19 opens the path to the consecration of their thesis by stating that a human right to Internet access is an unavoidable consequence of the right to utilize “any media” in order to “seek, receive and impart information and ideas”. Therefore, according to this thesis, Internet access should be envisaged as a human right because it is an instrumental condition in order to fully enjoy the freedom of expression that is inherent to every human being.
However, an opposite thesis denies the need of an Internet-access human right, considering the Internet as a mere communications medium, and arguing that there is no need to further protect its access because everyone shall already have the right to “seek, receive and impart information […] though any media”. Indeed, from this perspective, Internet access is already well-protected by a conspicuous set of human rights and fundamental freedoms such as freedom of expression, freedom of speech, freedom of movement (in cyberspace), right to dignity, right to privacy, etc.
From the Gospel according to Vinton
Contrary to what one may think, the non-human-right standpoint isn’t supported by a group of implacable “Internet negationists” but by a relevant part of the very community that conceived and “brought up” the Internet, amongst which we find Mr. Cerf himself. The chief Internet evangelist has indeed highlighted a pivotal point: “the best way to characterize human rights is to identify the outcomes that we are trying to ensure. These include critical freedoms like freedom of speech and freedom of access to information — and those are not necessarily bound to any particular technology at any particular time”.
Mr. Cerf being one of the fathers of the Internet, he probably knows his son better than anyone else and it seems he has already scented that the Internet – at least as we know it today – won’t be eternal.
His message sounds clear: the Internet is surely one of the best human-rights enhancer we have ever known but, despite its unprecedented potential, it has to be considered as a mere tool. Hence, according to this standpoint, the Internet – as any tool – is something transient and it wouldn’t be wise to elevate its access to the rank of a human right.
Moreover, Google’s Vice-President highlighted the role of technology as an “enabler of rights” and opposed this statement to the considerations expressed by the United Nations Special Rapporteur, Mr. Franck La Rue, and by the French Constitutional Council. However, Mr. La Rue’s Report considers Internet access as an “indispensable tool for realizing a range of human rights” whilst the Decision 2009-580 DC of the Conseil Constitutionnel states that the free communication of ideas implies freedom to access online services, therefore considering access as a necessary condition to enjoy freedom of expression and communication.
Hence, it is right and proper to stress that both the Report and the Decision are bent on promoting the same message proposed by Mr. Cerf: Internet access has to be fostered because it is as a great propulsor for human rights enhancement, not because it is a right itself.
Furthermore, though it is hard to criticize the statements of an Internet pioneer such as Mr. Cerf, one should admit that his distinction between human and civil rights can be easily misunderstood. Particularly, one could distinguish human rights from constitutional rights, arguing that human rights are conferred by international law because of their inherence to every human being, whereas fundamental rights are conferred by constitutions by virtue of their inherence to every citizen; but the opposition between human and civil rights seems to be strident, mainly because civil rights are comprised in the more ample category of human rights.
Indeed, the Preamble of the UN ICCPR solemnly recognizes that “these rights derive from the inherent dignity of the human person”, and it has been stressed by Article 5 of the 1993 Vienna Declaration and Programme of Action that “human rights are universal, indivisible and interdependent and interrelated”. Hence, civil and human rights do not have to be put in contrast; they rather have to be considered as two complementary and mutually strengthening forces.
A valuable solution
The most valuable approach to the delicate Internet-access issue has probably been proposed by Finland that, since July 2010, has established a “universal service obligation” concerning Internet access of one Megabit per second. Indeed, it is a fact that, at present, Internet access – be it a human right or not – is essential to fully participate in every democratic society and, therefore, it should be available to all citizens.
Though the concept of universal service obligation may be associated with fundamental rights, the Finnish Legislator has adopted a milder approach, considering Internet access as a legal right rather than a fundamental one. In doing so, the Finns have clearly chosen to envisage Internet access as a right that could be refashioned and updated – or even abolished – without elevating it to the constitutional rank.
Finally, one has to admit that what is needed in order to empower people is better protection of the already existing human rights, promoting an Internet access free from filtering, censorship and any kind of authoritarian abuse. This must be achieved through a joint effort of policymakers, legislators, and technologists that, as Mr. Cerf underscores, have the “tremendous obligation to empower users, but also an obligation to ensure the safety of users online”.
