As family life migrates online and the web becomes the home of free expression, it's getting harder for courts to prevent individuals going online
Vint Cerf is widely acclaimed as the 'father of the internet'. Photograph: Frank Baron for the Guardian
A recent United Nations Human Rights Council report examined the important question of whether internet access is a human right.
While the Special Rapporteur's conclusions are nuanced in respect of blocking sites or providing limited access, he is clear that restricting access completely will always be a breach of article 19 of the International Covenant on Civil and Political Rights, the right to freedom of expression.
But not everyone agrees with the UN's conclusion. Vint Cerf, a so-called "father of the internet" and a vice-president at Google, argued in a New York Times editorial that internet access is not a human right:
From the technological standpoint, JD Rucker on the Techi Blog argues that outcomes are key, and elevating the internet to the status of an inalienable right will result in "increased opportunity, improved education, and the end of hostilities based upon ignorance".
Matthew Ingram on Gigaom also makes the practical point that not defining internet access as a human or civil right "makes it easier for governments to place restrictions on access or even shut it down entirely". This is particularly relevant given the widely-cited role of the internet and specifically social media in recent political revolutions like the Arab Spring.
Of course, this is not just a philosophical debate. States already ban internet use in one form or another regularly. Closer to home, there are already a number of laws which allow state authorities to restrict internet access, most notably rules relating to sex offenders and terrorist suspects. The troubled Digital Economy Act has been attacked over proposed powers to ban websites which host copyright material without permission. The government subsequently backed down over the issue, but the Act remains controversial.
Interestingly, the UK Court of Appeal has agreed with the sentiment of the UN report, although without expressing its conclusion in terms of human rights. The recent case of Regina v Smith & others (read Maria Roche's post here) involved an examination of the terms of a Sexual Offences Prevention Order under the Sexual Offences Act 2003.
The court ruled that the internet was an "essential part of everyday living" and therefore, a complete ban on use in this case would be disproportionate. This was expressed very wide terms, and it is difficult to imagine many scenarios where a complete ban would be permitted by law.Lord Justice Hughes said:
Interestingly, in AM the judge accepted the security services' evidence that it would be practically impossible to monitor the suspect's internet use, due in part to vulnerabilities in the Windows operating system. This sounds highly debatable, but perhaps that technical argument will be had on another day.
Ultimately, it seems that the current position in UK law - reflecting but not wholly endorsing the UN report - is that internet access will remain, reflecting freedom of expression under Article 10 ECHR, a qualified right. That is, it can be restricted but only if that restriction is provided for by law and necessary/proportionate in a democratic society, unlike for example the absolute restriction on inhuman and degrading treatment under Article 3 ECHR.
Indeed, the UN Report accepts that in some scenarios internet access will need to be restricted, for example in the case of sex offenders and terrorist suspects – which is also the conclusion of this excellent 2011 post on Inforrm's blog.
This is a question which will certainly be revisited in the coming years. Whether the UN or Vint Cerf is right on a philosophical level as to whether internet access should be characterised as a human right, technology is changing rapidly and the courts will have to do their best to keep up. Whether or not it is a human right in its own respect, the internet provides the gateway to other freedoms, notably freedom of expression and the right to family and private life and therefore access to can be, practically, inseparable from the rights themselves.
It is highly unlikely that internet access will ever attain the status of an absolute right. However, the current position of UK courts rightly makes it very difficult indeed for the state to ban completely a citizen's use of the internet, however strong the justification.
While the Special Rapporteur's conclusions are nuanced in respect of blocking sites or providing limited access, he is clear that restricting access completely will always be a breach of article 19 of the International Covenant on Civil and Political Rights, the right to freedom of expression.
But not everyone agrees with the UN's conclusion. Vint Cerf, a so-called "father of the internet" and a vice-president at Google, argued in a New York Times editorial that internet access is not a human right:
The best way to characterise 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. Indeed, even the United Nations report, which was widely hailed as declaring internet access a human right, acknowledged that the internet was valuable as a means to an end, not as an end in itself.Cerf does concede that internet access may be a civil right, defined as a right which is "conferred upon us by law" (arguably a definition which does not apply to the UK where the European Convention on Human Rights has been incorporated into our law). He says:
While the US has never decreed that everyone has a "right" to a telephone, we have come close to this with the notion of "universal service" — the idea that telephone service (and electricity, and now broadband internet) must be available even in the most remote regions of the country. When we accept this idea, we are edging into the idea of internet access as a civil right, because ensuring access is a policy made by the government.There have been some interesting responses to Cerf's op-ed. Amnesty International's USA blog argues that he provides an "exceptionally narrow portrayal of human rights from a legal and philosophical perspective". Moreover, his means versus ends characterisation of rights is philosophically incoherent, for:
while access to the physical town square may not be a human right in isolation, it has always been for most inseparable from the right to association and expressionSo, applying the same logic, internet access is inseparable from freedom of expression and its lesser spotted cousin, freedom of access to information. Moreover, I would argue that internet use may also fall within Article 8 ECHR, the right to family and private life, as email, Skype, Facebook and Twitter are now essential tools of interaction between friends and family.
From the technological standpoint, JD Rucker on the Techi Blog argues that outcomes are key, and elevating the internet to the status of an inalienable right will result in "increased opportunity, improved education, and the end of hostilities based upon ignorance".
Matthew Ingram on Gigaom also makes the practical point that not defining internet access as a human or civil right "makes it easier for governments to place restrictions on access or even shut it down entirely". This is particularly relevant given the widely-cited role of the internet and specifically social media in recent political revolutions like the Arab Spring.
Of course, this is not just a philosophical debate. States already ban internet use in one form or another regularly. Closer to home, there are already a number of laws which allow state authorities to restrict internet access, most notably rules relating to sex offenders and terrorist suspects. The troubled Digital Economy Act has been attacked over proposed powers to ban websites which host copyright material without permission. The government subsequently backed down over the issue, but the Act remains controversial.
Interestingly, the UK Court of Appeal has agreed with the sentiment of the UN report, although without expressing its conclusion in terms of human rights. The recent case of Regina v Smith & others (read Maria Roche's post here) involved an examination of the terms of a Sexual Offences Prevention Order under the Sexual Offences Act 2003.
The court ruled that the internet was an "essential part of everyday living" and therefore, a complete ban on use in this case would be disproportionate. This was expressed very wide terms, and it is difficult to imagine many scenarios where a complete ban would be permitted by law.Lord Justice Hughes said:
Before the creation of the internet, if a defendant kept books of pictures of child pornography it would not have occurred to anyone to ban him from possession of all printed material. The internet is a modern equivalent.However, full internet bans have occasionally been permitted by the courts. Mr Justice Silber ruled in the November 2011 case of AM v Secretary of State for the Home Department (see Rosalind English's post) that a full internet ban placed upon a terrorist suspect subject to a control order (a highly restrictive anti-terrorism power) was lawful. It should be noted that the successor to control orders, the TPIM, no longer permits complete internet bans.
Interestingly, in AM the judge accepted the security services' evidence that it would be practically impossible to monitor the suspect's internet use, due in part to vulnerabilities in the Windows operating system. This sounds highly debatable, but perhaps that technical argument will be had on another day.
Ultimately, it seems that the current position in UK law - reflecting but not wholly endorsing the UN report - is that internet access will remain, reflecting freedom of expression under Article 10 ECHR, a qualified right. That is, it can be restricted but only if that restriction is provided for by law and necessary/proportionate in a democratic society, unlike for example the absolute restriction on inhuman and degrading treatment under Article 3 ECHR.
Indeed, the UN Report accepts that in some scenarios internet access will need to be restricted, for example in the case of sex offenders and terrorist suspects – which is also the conclusion of this excellent 2011 post on Inforrm's blog.
This is a question which will certainly be revisited in the coming years. Whether the UN or Vint Cerf is right on a philosophical level as to whether internet access should be characterised as a human right, technology is changing rapidly and the courts will have to do their best to keep up. Whether or not it is a human right in its own respect, the internet provides the gateway to other freedoms, notably freedom of expression and the right to family and private life and therefore access to can be, practically, inseparable from the rights themselves.
It is highly unlikely that internet access will ever attain the status of an absolute right. However, the current position of UK courts rightly makes it very difficult indeed for the state to ban completely a citizen's use of the internet, however strong the justification.
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