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Global citizens overwhelmingly agree that internet access is a fundamental human right, with a 2010 survey finding that four in five individuals worldwide share this view. Yet an estimated 3.7 billion people globally are not connected to the internet (internet access data is largely limited to developed countries). Moreover, this problem extends beyond low- and middle-income countries – more than 24 million Americans have no home access to broadband internet.
Inequities in access exist both within countries, and between Global North and Global South countries. These inequities create further imbalances in knowledge and opportunity, disproportionately harming marginalized groups, including children (and especially children of color),women, rural populations, Indigenous populations, and those in the Global South. The COVID-19 pandemic has highlighted and exacerbated these widespread issues with internet unreliability or total inaccessibility. The harm caused by this digital divide clearly illuminates why internet access is essential, and so it should be considered a human right.
No major international treaty codifies a right to internet access, and the general sense among scholars is that there is currently no international legal obligation for governments to take actions to secure such a right for their citizens. Nevertheless, some scholars have argued states have a duty to refrain from interfering with access, if restrictions impede enjoyment of human rights. Others argue that growing trends in international policy and soft law indicate a convergence of norms and a movement toward future recognition of internet access as a human right. This right would include governments’ obligations to provide the necessary physical infrastructure.
The UN Human Rights Council has addressed internet access in several non-binding Resolutions on “the promotion, protection and enjoyment of human rights on the internet.” The most recent Resolution emphasizes the importance of applying a human rights-based approach to internet access and calls on states to “promote affordable and reliable connectivity, digital access and digital inclusion.” While the Resolution does not explicitly mention states’ legal obligations to provide the infrastructure necessary for internet access, and the language regarding states’ duties is lenient, it nonetheless marks a significant step toward greater legal recognition of internet access rights.
One path to recognition is to show that the right to internet access is implicit in existing human rights. This interpretive approach has been used, for example, to argue that the right to climate change asylum due to environmental degradation (not explicitly a binding international human right) is included in the right to life, which is a fundamental human right as expressed in major international treaties. The right to internet access is arguably implicit in established human rights, including the freedom of expression, which is codified in Article 19 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).
The UN Human Rights Council has noted that these provisions encompass the right to internet access. The former UN Special Rapporteur on Freedom of Expression, Frank La Rue, similarly argued that internet access should be recognized as a human right vital to freedom of expression. And Article 19 of the ICCPR was referenced in litigation challenging the internet shutdowns in Cameroon in 2017. Other ICCPR articles could likewise support a right to internet access, such as Article 22 (freedom of association) or Article 25 (right to “take part in the conduct of public affairs”).
Importantly, these are not mere negative rights of non-interference. According to La Rue, governments also have a duty to promote and provide the infrastructure and hardware needed to gain access. This duty is rooted, in part, in Article 2 of the ICCPR, which states that nations must take steps to give immediate effect to the enumerated rights. Moreover, the Human Rights Committee’s General Comment No. 34 states that governments “should take all necessary steps […] to ensure access of individuals” to the internet and global networks of information and communication technologies.
The need for recognizing the right to internet access is rooted in the indivisibility of fundamental human rights. The principles of interdependence and indivisibility of rights are referenced in all the major human rights treaties. When one set of human rights (e.g., economic and social) is violated, this also affects other rights (e.g., civil and political rights).
Regarding the internet and established human rights, it is nearly impossible to meaningfully participate in public affairs and politics without internet access. The same goes for accessing an adequate education, healthcare, or other economic and social human rights.
Thus, internet access should be recognized as a fundamental human right — because it is implicit in, indivisible with, and necessary for the realization of other fundamental human rights.
The right to internet access could also become a recognized legal right through customary international law (CIL). CIL has two elements: state practice (how states act with regard to the right) and opinio juris (states’ subjective belief about their obligations). For a right to be recognized in this manner, there must be a general practice of states recognizing that right, as well as a belief by those states that the right exists. Influencing factors include court judgments, soft law, and legal scholarship.
There is growing evidence that internet access could become a recognized right under CIL. The right to internet access has been increasingly recognized in state practice in recent years. Estonia classified internet access as a human right in 2001. Finland made broadband a legal right for its citizens in 2009. The Indian state of Kerala has also declared universal internet access a basic human right. Other countries that have so declared include Sweden, Canada, Germany, and Greece. In 2013, Mexico not only declared internet access a human right, it also required the government to provide access to those who cannot afford it — including the obligation of building public infrastructure to support access.
The issue has also been addressed through national courts. In a 2010 case, the Supreme Court of Costa Rica declared that internet access is a fundamental right. Even the United States Supreme Court has noted that access to the internet and social media platforms provide “perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”
This increasing state recognition of the right to internet access, across many regions and through various means, strengthens the case for the recognition of the human right to internet access under CIL.
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