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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 153
January 23, 2010

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Internet access: A fundamental right?

M. Jashim Ali Chowdhury

Are peoples' fundamental human rights being violated when they don't have access to the internet? This question brings an important opportunity to think afresh on our traditional understanding of human rights. Internet access may be understood as a contemporary form of the right to self-expression. It may also be understood as part of basic access to public services in an increasingly digitized world. Add to it the increased quality of life that comes with the huge jump in access to cultural and logistic information. The Council of Europe is moving decisively towards the 'universal right to internet access.' Finland has become the first, and surely not the last, country to make access to internet a legal right. In Switzerland the law on Universal Service grants every Swiss the right to get a broadband connection of 0.6 Mbps and the provider has to fulfil this obligation even if you're in a hut somewhere in the Alps! Just couples of months ago, the Constitutional Council of France termed access to internet a human right.

The Council of Europe efforts
In Council of Europe the 'Telecoms Reform Package' was presented to the European Parliament in November 2007. The debates on the Telecoms Package led to an extremely strong recognition of the access to internet as a fundamental right. In the first reading of the Package during September 2008 a number of amendments (known as Amendment 138) were carried (573 votes for and 74 against). It upheld the user's rights by making a judicial authority, in preference of an adminsitrative authority, the highest instance deciding on sanctions against him. But as the French representatives demanded the withdrawal of Amendment 138, the renumbered Amendment 46 was propsoed on the basis of an offered compromise. In the second reading, on 5 May 2009, a clear majority (407 votes for and 57 against) adopted the Amendment 46 again making it illegal to disconnect the internet users on the ground of suspected copyright violations until they are proven guilty in court. It recognised, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on Freedom of Expression and Information, that internet access is part of fundamental rights such as the freedom of expression and access to information. The Telecoms Package is now waiting its third reading and pressure is mounting upon the European Parliament to guarantee a free, open and innovative Internet.

The French Constituional Conucil bolsters the move
On 13 May, 2009 the French National Assembly passed the Creation and Internet Law, also called the Three-Strikes Law, as a key plank to deal with illegal file-sharing over internet. Section 5 of the Statute introduced the HADOPI (High Authority for the Diffusion of works and the Protection of copyright on the Internet) within the framework of the Intellectual Property Code which would act as intermediary between rights holder organizations and ISPs (Internet Service Providers) and would pass on the allegations from the right holders with a request to the ISPs to warn or sanction their users. Section 10 empowers the HADOPI to order the taking of all measures necessary to prevent or put an end to such infringement of copyright or a related right. Section 11 inserts into the Intellectual Property Code provisions which define the duty to monitor access to the internet to determine the cases in which internet access has been used in a manner infringing copyright of another. Under the law, pirates would be given three emailed warnings (Three Strikes) before having their access to the net cancelled or suspended. Suspension may be for a period of two months to one year accompanied by the impossibility for the subscriber to enter into any other contract with any other operator for access to internet.

There had been considerable public debate about the status of the HADOPI - whether it was a court with a legal authority to sanction internet subscribers. It was alleged that the law created an internet Big Brother who would hit innocent people whose web connections were being used by others, such as children, employees or people illegally hooking into their wi-fi. In June 2009, a reference was made to the Conseil Constitutionel to review the law. The parties making the referral contended that by giving an administrative authority the power to impose penalties in the form of withholding access to the internet, Parliament infringed the fundamental right of freedom of expression and communication (Para 11 of the Council's Judgment, Available Online: www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/2009_580dc.pdf).

Referring to Article 11 of the Declaration of the Rights of Man and the Citizen of 1789 the Council opined that the free communication of ideas and opinions protected by the founding fathers of the French Republic continues to serve a purpose in today's Information Society. Given the generalized development of public online communication services and 'the importance of these for participation in democracy', the Council held that the right to free coomunication of ideas and opinions implies freedom to access internet (Para 12).

As to the question whether HADOPI was a court, the Council made it clear that it would be merely a public administrative authority and would not have the legal powers of a court. Considering the importance of 'the right of any person to exercise his right to express himself and communicate freely' the Council held that only a court had the authority to switch off a person's web connection and the Parliament was not at liberty to vest an administrative authority with such powers (Para 16). In the name of fighting the infringement of copyright grossly disproportionate restriction on the right of free communication and freedom to speak, write and publish may not be imposed (Para 15).

Finland makes a big push to the internet access 'right'
Finland is one of the most wired countries in the world. About 95 percent of the population has some sort of Internet acces. On October 14, 2009 the Finnish Ministry of Transport and Communications announced a Decree on the Minimum Rate of a Functional Internet Access as a Universal Service (732/2009). As per the law, the minimum rate of downstream traffic of a functional internet access is 1 Mbps (Section 1(1) of the Decree). However, the average minimum rate of 750 Kbps in a measuring period of 24 hours and 500 Kbps in any 4-hour measuring period shall do (Section 1(2)). Every Finn shall have this right guaranteed by 1 July 2010 (Section 2(2)). The legal implication of this 'legal right' is that specific operators are enforced to provide specific level of service for all consumers at a reasonable price. The move by Finland is aimed at bringing web access to rural areas, where geographic challenges have limited access until now. The 1 Mbps mandate, however, is simply an intermediary step, the country is aiming for speeds of 100 Mbps for all by 2015.

Right to internet access: Possible objections and a reply
Though the notion of internet as a basic right is gaining momentum, forcefully advocating it in an overhelmingly capitalist world still runs every risk of being termed 'asinine' and 'UN-believable'. The Scandinavian-style welfare decision of Finland sounds 'Obamish' to many. They doubt whether internet access is a 'right' or a 'nice-to-have'. Some fear more governmental intruision through such 'Robin Hood' socialism whereby the government steals from the rich (internet service providers) and gives to the poor (under-privileged users). Some other even recall Jefferson: 'A government big enough to give you anything you want is big enough to take everything you have.' However, if you look from a developing county's point of view it will not be too tough to locate the 'concern' of the cynics. A large number of 'e-citizens' arround the West have asked the question: Who is going to pay for the 'right to internet access'? A serious question indeed.

Well, there may be some interpretational side effects of the primary goal of universal right to internet access. Firstly, government guarantees that no one can deny you access to broadband service as long as you're willing to pay for it. Second, those who want broadband and can pay for it must do so while those who want it but demonstrates inability to pay will have it provided to them. This would be more akin to everyone having a right to defense counsel if charged with a crime. If you can afford it, you hire your own attorney. If you can't the government provides an attorney for you. And third, government provides the service to everyone and taxes the people through some means (direct tax, fees on services, etc).

I think no one shall dislike the first option. As to the second and third, it may be argued whether it makes sense for the government to subsidize access to broadband. So let us ask some questions and answer them ourselves. How much were and are spent on rural electrification to get power to the farmers so that we reach the targeted food production? A 'knowledge economy' requires Internet access in the same way the agricultural economy requires electricity. How much were and are spent in those government-funded fire services or police protection or public education and a hundreds other services that we enjoy? So why not a little bit in technology? Isn't it far cheaper for the government to provide basic broadband access to everyone than to provide printed versions of every form to all its citizens? Isn't it far better to spend on the universal access to internet than to spend in bailing out the purveyors of the capital market? The point to emphasize is offering information access to all citizens to bridge the gap between the have's and the have not's. Those who have it are at an advantage to those who do not. There are so many things you are excluded from without Internet access.

The Finnish government or the French Constituional Council is simply laying down examples that should be followed by every country that wants to participate in a 21st Century 'knowledge economy'. Yes someone has to pay and it will cost a lot of money but the benefits are huge. Adding the idea fundamental right to low-cost internet service is the only next logical step for modern, enlightened societies. While surfing through the net, I've noticed one Cory Doctorow predicting: 'In five years, a UN convention will enshrine network access as a human right. In ten years, we won't understand how anyone thought it wasn't a human right!'


The writer is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka.x



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