—Jason M. Tenenbaum, Barton LLP
Much of the international discussion with regard to access rights to the Internet has focused on the idea of “network neutrality,” and not on whether the right to access the Internet itself is protected. On a domestic level, countries like France and Greece have already created constitutional provisions to protect a right to access the Internet. However, at a human rights level, whether there is or should be a right to access the Internet is less clear and debated.
Supporters claim that the United Nations has already declared access to the Internet a human right, though, in actuality, U.N. reports have stopped short of this and have instead repeatedly urged states to facilitate access. Critics counter with several claims, namely that “technology is an enabler of rights, not a right itself,” that protecting access to the Internet would devalue other human rights, and that codifying a right to the Internet would pose problems of both scope and timing.
Yet as I demonstrate below, a new right does not have to be created. Both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (“ICESCR”) already protect access to the Internet.
A Right to Access the Internet is Protected by the ICCPR
With regard to the ICCPR, Article 19(2) states that “[e]veryone 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.” Portions of the legislative history illustrate that this language was intended to provide broad protections for individuals and extend to technologies like the Internet. First, a motion to replace the word “seek” with “gather” was rejected because the word “seek” was used to “protect active steps to procure and study information.” Second, a motion to replace the phrase “through any media” with the phrase “by duly licensed visual or auditory devices” was rejected because “it would be contrary to the general principle of freedom of information, … to adopt the restrictive formula … .” Third, the phrase “regardless of frontiers” was included in the language because the phrase was intended to “enable anyone to seek information outside his own country.” And finally, at the time of its drafting, the authors of Article 19 realized that “[t]he members of the Commission must take into account the fact that their work concerned the future and not the past; no one could foresee what information media would be employed in a hundred years’ time.” As such, the legislative history demonstrates the drafter’s intent to include within Article 19’s purview any technology that allows individuals to proactively seek information, regardless of their location or the information they seek; in other words, the Internet.
A Right to Access the Internet is Protected by the ICESCR
Article 15 of the ICESCR also protects a right to access the Internet in two different ways. The Article states that individuals have a right to “take part in cultural life” and to “enjoy the benefits of scientific progress and its applications.” The U.N. has defined “to take part in” as “three interrelated main components … (a) participation in, (b) access to, and (c) contribution to cultural life.” Importantly, access to cultural life includes a “right to learn about forms of expression and dissemination through any technical medium of information or communication.” Indeed, the Internet is today’s best, and sometimes only, medium for satisfaction of these components.
Access to the Internet is also protected as a benefit of scientific progress. In the Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, the Special Rapporteur stated that “[w]ith the Internet emerging as a critical platform for scientific and cultural flows and exchanges, freedom of access to it and maintaining its open architecture are important for upholding the right of people to science and culture.” Indeed, it was specifically recommended by UNESCO that “[e]qual participation in, access to and use of, information and communication technologies, such as the Internet should be ensured under the [Right to Enjoy the Benefit of Scientific Progress].”
Each of the covenants discussed protects the right to access the Internet in a different way. The freedom of expression protected by the ICCPR protects the right to access the Internet as a negative right, ensuring that governments who have ratified the covenant refrain from interfering with an individual’s rights. Conversely, the language of the ICESCR protects the right to access the Internet in a more positive nature by placing obligations on the government to act in a way that promotes the rights included in its text.
The distinction between a positive and a negative right is not meaningless. Individuals are using the Internet to participate in culture, learn, and engage in business. Governments are also using the Internet to collect, store, and display information and to interact with constituents. To that extent, merely refraining from disconnecting users is not enough to ensure that an individual can participate in society. In light of the current use of the Internet and the state of technology, national governments should have a dual focus – refraining from disconnecting individuals who are already connected to the Internet while encouraging the growth of infrastructure that ensures individuals have access. Such an approach is not without its challenges. An appropriate balance must be struck between government intervention and the free market. This post is not intended to comment on the best course of action for ensuring that both the positive and negative aspects of the protected right to access the Internet are respected moving forward. Rather, this post demonstrates that the two covenants, the ICCPR and the ICESCR, operate to protect a right to access the Internet in a manner that strikes an appropriate balance between advocates and critics.
Suggested Citation: Jason M. Tenenbaum, Is There a Protected Right to Access the Internet?, Int’l J. Const. L. Blog, June 6, 2014, available at: http://www.iconnectblog.com/2014/06/is-there-a-protected-right-to-access-the-internet
 Conseil consitutionnel [CC][Consitutional Court] decision No. 2009-580, June 10, 2009, available at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/download/2009580DC2009_580dc.pdf [hereinafter HADOPI Decision]
 2008 Syntagma [Syn.][Consitution] 5a (Greece).
 Compare U.N. Report Declares Internet Access a Human Right, Wired (June 3, 2011), http://www.wired.com/threatlevel/2011/06/Internet-a-human-right/, with Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, Human Rights Council, U.N. Doc. A/HRC/17/27 (May 16, 2011) [hereinafter La Rue Report](calling for states to facilitate access to the Internet), and Human Rights Council, The Promotion, Protection and Enjoyment of Human Rights on the Internet, 20th Sess., UN Doc. A/HRC/20/L.13 2 (June 29, 2012).
 Vinton Cerf, Internet Access is Not a Human Right, N.Y. Times (Jan. 5, 2012) http://www.nytimes.com/2012/01/05/opinion/Internet-access-is-not-a-human-right.html?_r=0
 Paul De Hert & Dariusz Kloza, Internet (Access) as a new Fundamental Right. Inflating the Current Rights Framework?, 3 Eur. J. L. & Tech. (2012).
International Covenant on Civil and Political Rights, art. 19(2) G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter ICCPR].
 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 343 (1993).
 Commission on Human Rights Summary Record, 6th Sess., ¶ 59, U.N. Doc. E/CN.4/SR.165 (May 2, 1950).
 Id. at ¶ 49.
 Id. at ¶ 54.
 International Covenant on Economic, Social and Cultural Rights, art. 15 G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976 [hereinafter ICESCR].
Committee on Economic, Social, and Cultural Rights, General Comment No. 21 on Right of Everyone to Take Part in Cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), ¶15, U.N. Doc. E/C.12/GC/21 (Dec. 21, 2009).
 Id. at ¶15(b).
Special Rapporteur in the Field of Cultural Rights, The Right to Enjoy the Benefits of Scientific Progress and its Applications, Human Rights Council, U.N. Doc. A/HRC/20/26 ¶36 (May 14, 2012).
 UNESCO, Report of the Experts’ Meeting on the Right to Enjoy the Benefits of Scientific Progress and its Applications 33 (2007) available at http://unesdoc.unesco.org/images/0015/001545/154583e.pdf