Ladies and Gentlemen, 

 

dear Colleagues,

 

unfortunately, I am not able to personally attend this important conference due a prior appointment with the Austrian Mission to the United Nations in New York – a time lag too huge to bridge even having the digital instruments enabling remote participation.

 

Nevertheless, it is my pleasure to contribute to this conference on Human Rights and Science and Technology by a video speech. And within the short time of 10 minutes, I will sketch the relation between access to the internet and human rights.

 

The internet as a potentially global, decentralised information and data network has become the backbone of modern societies. It has enabled a new wave of industrialisation. At the same time, it amounts to another emanation, as well as a driver of globalisation – having at least the potential of connecting the entire world and forming it into a global village of communication – something people such as McLuhan thought about already in the 1960s.

 

Access to the internet is, accordingly, more than participation in technological progress as a form of a ‘right to development’: It is having a fundamental societal function.

 

Where there is society, there should be human rights.

 

From a European human rights perspective, it is particular three questions that play an important role: (1) does a human right to internet access exist, (2) under which conditions may States restrict internet access and (3) can also a positive obligation upon States to provide internet access be established?

 

 

In the last decades we have seen a tendency to explicitly enshrine rights to internet access in domestic and supranational European Union law – mostly statutory law. However, neither in regional nor in international human rights documents has an explicit human right to internet access been codified so far.

 

However: Human rights are broadly phrased, enabling evolutionary and dynamic interpretation in order to protect interests irrespective of the nature and character of the threat or infringement. Accordingly, technological progress can be integrated into the human rights system. It has been the United Nations Human Rights Council which confirmed in 2016 hat ‘rights people have offline must also be protected online.’

 

But the question remains: Do people have a right to get online?

 

The French Constitutional Court was able to subsume access to internet under the freedom of expression clause of the Declaration of the Rights of Man and the Citizen of 1789!

 

An interpretation having been adequate for a declaration which initiated the development of modern human rights law and thinking in continental Europe seems also adequate for more recent documents. The approach taken under public international and regional law can be said to be deductive, that means analysing existing human rights to ascertain whether they contain a digital dimension which covers internet access.

 

A right at the forefront is freedom of expression and information, recognised under article 19 ICCPR, article 10 ECHR, and also paragraph 23 of the ASEAN Human Rights Declaration. It guarantees the right to express yourself, as well as to receive and impart information and ideas irrespective of the means of transmitting and regardless of frontiers. Thus, not only falls public speaking, traditional mailing and broadcasting under this basic communication right, but also the use of digital instruments. In this regard, internet access can be seen as a precondition enabling to enjoy freedom of expression and information in the digital age.

 

And there are other rights whose enjoyment might depend on internet access. The Covid-19 pandemic has let many European countries to switch to online teaching, so that fulfilling the right to education, as recognised by article 13 ICESCR or article 2 of the first additional protocol to the ECHR, depended on access to internet, meaning access to teachers. Freedom of religion comes into play when masses are held online; the right to actively and effectively having a family life can depend on using online communication tools, and the Human Rights Committee in its General Comment No. 37 (2020) has even extended the right to peaceful assembly to cover online meetings.

 

Finally, a genuine claim for internet access can be based on the right to enjoy the benefits of scientific progress as recognised under article 15 ICESCR and confirmed by General Comment No. 25 (2020) of the Social Committee.

 

Summarising, we see that internet access is covered by existing human rights being interpreted dynamically and recognising that the internet has become an essential tool for participating in social and political life, as well as to effectively enjoy human rights.

 

There is a debate, though, on whether the right to internet access has become a new autonomous human right, enjoying a semantic, conceptual and constitutional autonomy – or whether it is protected only implicitly in so far as it seems necessary for the enjoyment of other human rights.

 

 

We do not have, though, to give a definite answer to the question as the human rights mentioned can already serve as yardsticks for the assessment of measures restricting access to the internet. In particular, freedom of expression and information has been invoked by experts, authorities and courts to stress that States have no unlimited right to block access to the internet for an undefined group of people, for general blocking access to the internet or services, as well as for enacting filtering measures.

 

Neither of the rights mentioned are absolute rights, meaning that under certain circumstances – and the burden of proof is on the States – a restriction to internet access might be justified. Under the ECHR the European Court of Human Rights [ECtHR] has had several times the chance to rule on restricting measures. It, firstly, requires a legal basis providing accessibility and foreseeability, meaning it must be clear under which conditions restrictions can be imposed to avoid arbitrary interferences. Furthermore, the Court has expressed scepticism against prior state control as a form of censorship and ruled against broad measures to block undesirable content such as content being critical of the government or the political system.

 

Yet for a restriction to be justified, content plays a decisive role as access denial is only permissible with regard to specific content that can be lawfully blocked. The pursuit of such a legitimate aim has to be proportionate. In this respect the Court has for instance accepted to protect minors from content not adequate for them, as well as content being offensive, hate speech and incitement to violence. Furthermore, access to pages that provide for music files violating copyrights can also be justified.

 

Finally, the Court stressed that the margin of appreciation of public executive authorities have to be narrow and that judicial control becomes crucial. 

 

Summarising, access to specific internet content can be restricted but the burden of proof is on the State in each individual case.

 

 

The last question is whether a State can be obliged to provide internet access, that is, whether a positive obligation to supply the necessary equipment to the people and subsidize them exists. In fact, the triad of human obligations knows an obligation to fulfil besides the obligation to respect and protect. But courts are traditionally reluctant in recognising such positive ‘performance’ obligations and the ECtHR has, for instance, ruled that a State is not obliged to grant prisoners access to the internet, as well as that from the right to education no duty to subsidize internet access can be deduced.

 

Also, in Austria there is statutory law providing for a right to access to internet, but this law establishes only an obligation to contract, not an obligation for the State to pay for the internet. However, most States in Europe calculate internet costs when providing social welfare to people in need. In Germany, that is even acknowledged as a constitutional right.

 

Lastly, in 2021 the UN Human Rights Council called upon States to adopt ‘internet-related politics striving for universal access’ and ‘encouraged all States to take the necessary and appropriate measures to promote free, open interoperable, reliable and secure access to the Internet’.

 

Summarising, we can record a tendency also on the international level to regard internet access as part of the infrastructure a State is held responsible to provide and maintain also with regard to its human rights obligations.

 

Coming to an end: The right to internet access is one important example of how science, technology and human rights come together.

 

Thank you very much!