IS INTERNET ACCESS A HUMAN RIGHT?

A. T. Nuyen

Department of Philosophy, National University of Singapore, 3 Arts Link, 117570, Singapore

Keywords: Internet access, Right, Human right, Digital Divide.

Abstract: In June 2009, the highest court of France, The Constitutional Council, declared internet access to be a basic

human right. Many people are now campaigning to have it recognized as a human right by the United

Nations, along with those human rights already recognized by the world body. The main motivation behind

the campaign is the desire to close the digital divide, particularly that between rich and poor nations.

However, while having internet access recognized as a human right might go some way towards addressing

the digital divide issue, the theoretical case for recognition has not been clearly established. Without a solid

theoretical case, recognizing something to be a human right is a misunderstanding of the nature of that

something as well as of human rights. The former kind of misunderstanding may result in misdirected

efforts at promoting the activity in question and the latter in a debasement of human rights. This paper will

provide an account of human rights and will argue that on the basis of such account, internet access is not a

human right, even though it is an important right in itself and one that enables the promotion of other human

rights.

1 INTRODUCTION

One of the first acts of the newly created United

Nations was to adopt and proclaim, on 10 December

1948, the Universal Declaration of Human Rights.

The human rights proclaimed in the Declaration

include the rights to “life, liberty and security of

persons” (Article 3), the rights not to be “held in

slavery or servitude” and not to be “subjected to

torture…” or to “arbitrary arrest” (Articles 4, 5 and

9), the rights to “recognition … before the law,” to

“equal protection of law” and to “effective remedy

… by law” (Articles 6-8) and various other rights

pertaining to “life, liberty and security of persons.”

Since 1948, various other “declarations” have been

made, enlarging the list of human rights, such as the

“rights of the child,” the “rights of indigenous

peoples” and so on. These rights have been formally

recognized in two international covenants and

several other international treaties and have become

enforceable.

In recent years, there has been a growing

recognition of, on the one hand, the importance of

internet access and, on the other, the inequality of

access. This recognition has led to a concerted effort

to have internet access declared a human right.

Indeed, the United Nations itself has made a

tentative move towards such outcome. In 2003, the

UN and the International Telecommunication Union

convened and organized the World Summit on the

Information Society with the aim of generating the

political will and formulating a concrete plan of

action for achieving the goals of the information

society in line with the Universal Declaration of

Human Rights. No progress has been made since

then but this only motivates many activists to push

for the elevation of internet access to the status of a

human right. The activists’ effort received a legal

boost in June 2009 when the Constitutional Council

of France, the country’s highest court, declared that

internet access is not just a human right but a

“fundamental human right” in its judgment against

an anti-piracy law. One activist, the Canadian

journalist and science fiction writer Cory Doctorow,

confidently predicts, in the blog Boing Boing that he

co-edits, that “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” (Doctorow, 2009).

In all the calls for internet access to be

recognized as a human right, no effort is made to

define what a human right is and whether internet

access satisfies the conditions for something to be a

human right. It will be argued below that on a

287

T. Nuyen A.

IS INTERNET ACCESS A HUMAN RIGHT?.

DOI: 10.5220/0002764302870292

In Proceedings of the 6th International Conference on Web Information Systems and Technology (WEBIST 2010), page

ISBN: 978-989-674-025-2

plausible account of human right, internet access

does not qualify as one, even though it is certainly

an important right and indeed one that is

instrumental to the promotion of human rights

proper.

2 INTERNET ACCESS AND

HUMAN RIGHTS

In a recent volume on human rights and the internet

(Hick et.al., 2000), the contributors argue

persuasively for the link between internet access and

the promotion of human rights, even though some

authors also acknowledge that abuses of the internet

can impede promotion efforts. Many contributors

claim that the internet has had a positive effect on

human rights work in two ways: (1) it “has become a

tool for the promotion and protection of human

rights, being utilized to obtain, communicate and

disseminate information” (Hick et.al., 2000: 7) and

(2) it “provides the obvious tool for rapid, cheap and

accurate information to be supplied and

disseminated in response” to human rights abuses

(Hick et.al., 2000: 7-8). More importantly, as “the

capabilities and capacity of the Internet increases

[sic], new uses and methods for promoting human

rights will continue to emerge” (Hick et.al., 2000:

8). However, many authors also have serious

reservations, claiming that the internet has been used

(or rather abused) by “the enemies of human rights,”

for which reason the editors choose to situate the

book in the middle ground between enthusiasm and

caution, “neither to champion nor to dismiss [the]

technology” (Hick et.al., 2000: 13). Works such as

that by Hick et.al., while establishing a strong link

between the internet and human rights, do not

provide any solid support for the claim that internet

access should be made a human right. None of the

authors in this volume makes such claim. For the

editors themselves, this is so because it is difficult to

balance the promise of the internet against the threat,

its positive effects against the negative ones.

However, many other authors have gone beyond the

positive effects of the internet on human rights

promotion and argued that there is a solid basis for

making internet access a human right.

Going beyond the volume by Hick et.al., Best (Best,

2004) argues that internet access should be made a

human right on the basis of Article 19 of the

Universal Declaration of Human Rights. Article 19

states: “Everyone has the right to freedom of opinion

and expression; this right includes freedom to hold

opinions without interference and to seek, receive

and impart information and ideas through any media

and regardless of frontiers.”

The relevant phrase, it

seems, is the following: “… the right … to seek,

receive and impart information and ideas…” Indeed,

Best cites this phrase, highlighting “seek, receive.”

His argument seems to be that since internet access

is the means to secure “freedom of opinion and

expression,” which is a human right, it too must be a

human right.

In a similar vein, Anne Peacock (Peacock 2005)

has appealed to Article 19 to argue for the claim that

internet access, or access to information

technologies generally, is a human right. However,

she has bolstered her argument with the claim that

making access to information technologies a human

right is the means to narrowing, if not closing, the

“digital divide” between rich and poor countries.

That there is a great digital divide is undeniable.

Indeed, it was only in September of 2009 that

undersea internet cables reached Africa! Peacock

suggests that we need to guarantee human rights in

practice rather than just on paper, and that only the

human rights approach to the digital divide will

bring this about.

There is no doubt that making internet access a

human right will considerably help towards closing

the digital divide and securing the human right to

“seek, receive and impart information and ideas.”

However, arguments offered by Best and Peacock

show at best that internet access is the means to

securing certain human rights (such as the right

declared in Article 19). The trouble is that just

because something is a means to promoting or

securing a human right, it does not follow that it too

is a human right. The means itself must be judged on

its own to see if there is any basis for putting it on

par with the end that it helps to promote. What we

need, and what is lacking in the arguments offered

by Best and Peacock, is an account of what a human

right is. Internet access is a human right only if it fits

such account. The folly of making internet access a

human right just because it is the means of securing

the declared rights can be seen by considering the

possibility that information technologies will in the

near future develop beyond, or away from, the

internet and the world wide web. Would it still be

considered a human right? How could a human right

cease to be one on the basis of a shift in

technologies? Notice that no matter how

technologies shift, the “right to freedom of opinion

and expression” as declared in Article 19, as well as

other rights, will remain human rights.

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It is important to base the judgment that

something is a human right on a conceptual basis not

just because of the risk that a declared human right

with no conceptual basis can cease to be one as

circumstances, technological or otherwise, change.

Human rights are an important protection against

injustice world-wide. Unless it is ensured that

something is recognized as a human right only if it

deserves to be so recognized, we run the risk of

undermining the existing rights, or diluting their

force and dignity. One undeserving right managing

to get recognized as a human right could well

encourage efforts to have all kinds of rights made

into human rights. Given the imperfect politics of

human rights, some such efforts might well succeed

and the danger is that if every right is a human right

then nothing really is.

What about the recent decision of the

Constitutional Council of France to declare internet

access to be a human right? It is important to keep in

mind the fact that the Council’s decision was made

in the context of a ruling against the French

Government’s law, passed two months earlier,

which would track activities that infringe copyright

and ensure that offenders would be deprived of

internet access. The Council’s decision should at

best be treated as an internal matter with no

international implications. Indeed, its moral basis is

rather dubious, being based on the claim that free

access to public communication services online is

implied in the “Declaration of the Rights of Man and

of the Citizen,” which is part of the preamble to the

French constitution. The “rights of man” referred to

in this “Declaration” are reserved only to free and

white men, specifically excluding slaves, women

and non-white people. Furthermore, critics of the

Council’s judgment have claimed that the Council

has ignored the rights of authors and artists. Indeed,

it might be argued that the judgment goes against

Article 17 of the UN Declaration which states that

everyone “has the right to own property” and “No

one shall be arbitrarily deprived of his property.”

3 HUMAN RIGHTS: A

CONCEPTUAL ANALYSIS

What counts as a human right? One possible answer

is that it is whatever declared as such by an

international body such as the United Nations and

ratified by an acceptable number of nations. It is

perhaps this institutional approach to human rights

that underpins the various efforts to have internet

access declared a human right by the UN. However,

using this approach is like putting the cart before the

horse. The UN should recognize something as a

human right because it is conceptually one, not the

other way round. As a compromise, it may be

assumed that all the rights declared by the UN to be

human rights are already properly so and all we need

to do is to take their key characteristics to be the

defining ones and apply them to any candidate. This

approach is unsatisfactory because it assumes that

the UN is infallible in its judgments (which is not to

say, as we will see, that being recognized by an

international body like the UN is not part of being a

human right). Indeed, it may turn out that some of

the rights recognized by the UN as human rights

should not be so recognized. There does not seem to

be any way out of giving a conceptual answer to the

question “What counts as a human right?” In this

question, the stress is on “human” rather than on

“right.” Indeed, it will be taken for granted here that

a human right is a right and an account of it will

have to fit in with the account of right generally.

What a right is, in general, is well enough

understood. Skorupski’s formal statement captures

well enough the basic intuitions about rights:

X has a right to Y against Z if and only if it is

morally permissible for X or X’s agent to demand

that Z does not take Y from X, or does not prevent X

from doing Y, or delivers Y to X (as appropriate),

and to demand compensation for X from Z in the

event of damage resulting from Z’s non-compliance

(Skorupski, forthcoming: 7).

Rights defined as such entail “duties of right”

such as the duties not to seize from others what

belong to them by right, not to harm or damage it,

and “to play a fair part in supporting legitimate

institutions” to ensure “fair distribution of jointly

owned resources” and to protect rights (Skorupski,

forthcoming: 9).

Skorupski’s account is perfectly adequate in

spelling out the moral content of a right. For my

purposes, however, it is useful to spell out the

logical requirements for having a right. In doing so,

it will be clearer how something can progress from

being a right to being a human right. Thus, it is

suggested that X has the right to Y if and only if:

(1) X has an interest in, or a desire for, Y, or would

have such interest or desire if X sufficiently

understands the nature of Y,

(2) It is not wrong for X to have an interest in or a

desire for Y, or to seek to obtain Y,

(3) It is wrong to prevent X from having Y, or to

deprive X of Y.

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(1) to (3) constitute the conditions for having a

right generally. They do not require any party to do

any specific thing to ensure that X has Y. Apart from

the negative duty to refrain from preventing X from

obtaining Y, no one has a positive duty to ensure

that X has Y. The right to have children does not

obligate any party to ensure that a couple have

children (by, for example, providing fertility

treatment). For a right to something to be claimable

against another party, we need:

(4) X has the right to Y against Z if and only if (1) to

(3) obtain and it is Z’s duty, or obligation, or

responsibility to ensure that X has Y.

The right to a job may be claimable against the

government if it is written in the country’s

constitution that every citizen is entitled to a job, or

if it is part of the platform of the political party in

power. Failure to ensure that X has a job may entail

compensation such as paying X unemployment

benefit, providing job training etc.

For something to be a human right, we need all

of (1) to (4) as well as:

(5) The interest in or desire for Y is universal among

humans,

(6) The possession of Y is intrinsically valuable and

the lack of Y is a serious deprivation,

(7) It is a duty of the international community to

ensure that the relevant Z discharge Z’s duty, or

obligation, or responsibility to X, or at least

encourage Z to do so,

(8) Z’s duty, or obligation, or responsibility to X is

clearly determinable, or alternatively, violation of

X’s right is clearly determinable.

(5) is required because for something to be a

human right, it has to be universally desirable across

all humans. It makes no sense to make the right, say,

to eat meat a human right (assuming that eating meat

satisfies (2)) because a significant proportion of

humanity has no interest in or desire for eating meat;

indeed many have an aversion to it. There are

borderline cases such as “the right to marry and to

found a family” as proclaimed in Article 16 of the

UN Declaration. One might defend the inclusion of

this right by arguing that, as things stand, the interest

in or desire for marrying and having a family

remains universal, and if there is any aversion to it,

the aversion is personal and not directed at others,

unlike the case of meat-eating where the aversion is

typically directed at meat-eaters. On the other hand,

there would be a case for dropping the right to marry

and to have a family from the list of human rights if

social trends moved significantly away from these

practices. Indeed, it might be argued that something

that depends so much on social trends should not be

regarded as a human right.

(6) is required because of the elevated moral

status of a human right. The point of making a right

into a human right is, in part, to indicate that the

violation of such right should be treated with utmost

seriousness. As Bernard Williams has put it, the

“charge that a practice violates human rights is

ultimate, the most serious of political accusations”

and “it is a mark of philosophical good sense that the

accusation should not be distributed too

inconsiderately…” (Williams, 2005: 27). It follows

that unless something is intrinsically valuable and

not having it is a serious deprivation, serious in the

sense of being a threat to human dignity, it does not

make philosophical good sense to elevate it to the

status of human right. For instance, the copyright of

software writers to their creations is, arguably, not a

human right because having copyright is valuable

but not intrinsically so and not having it is a

deprivation but not a serious one. Violation of

the “ultimate, most serious of political accusations.”

Indeed, the decision of the French Constitutional

Council mentioned earlier implies that copyright is

not a human right.

(7) and (8) are required because, following from

(6), the point of making something a human right is

to underscore the seriousness of its violation and to

gather all the necessary political means to ensure the

enforcement of it. This means that if something is a

human right then it ought to be declared so by an

international organization such as the United

Nations, and the declaration ought to be ratified by

member nations. Furthermore, there ought to be an

adequate international mechanism of monitoring and

enforcement. Point (8) in particularly stipulates that

the right in question must be such that it is

determinable whether the right is respected or

violated (otherwise enforcement would be

impossible). For this to be so, Z’s duty to X has to

be a Kantian perfect duty, which Z either discharges

or fails to discharge, such as the duty to tell the truth,

rather than an imperfect duty, which is a matter of

degrees, such as the duty of benevolence. To

illustrate, Article 26 of the UN Declaration states

that everyone “has the right to education.” Without

qualification, the “right to education” fails Condition

(8) because it is not clear how to respect this right or

how to discharge the duty to provide education. To

be educated, or providing education, is a matter of

degrees. Sensibly, Article 26 goes on to specify that

“Education shall be free, at least in the elementary

and fundamental stages.” Put this way, the right to

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education “in the elementary and fundamental

stages” does satisfy (8) insofar as it is clear enough

whether any state respects this right or fails in its

duty of right.

Conditions (5) to (8) above are consistent with

Skorupski’s conditions: Something is a human right

only if it is “(a) an essentially universal right…, (b)

whose active enforcement and promotion it is

permissible for anyone, including all states, to

demand of any state…, (c) and which it is

efficacious to distinguish and recognize in

international law as demandable of any state”

(Skorupski, forthcoming: 18). Skoprupski calls (a)

the condition of “universality,” (b) of “cross-state

demandability” and (c) of “efficacy.” Skorupski’s

(a) corresponds roughly to (5) above and his (b) and

is somewhat weaker than “cross-state

demandability” and (8) spells out more clearly what

“efficacy” entails. All together, Skorupski’s

conditions entail (6) but it is worth spelling it out

more explicitly.

4 IS INTERNET ACCESS A

HUMAN RIGHT?

That internet access is a right is clear enough. The

interest in, or desire for, having access is

unquestionable. Indeed, with increasing wealth in

countries such as India and China, the demand for

access world-wide is accelerating at a fast rate (and

access will in turn fuel economic growth and

increase the demand for access even more). Internet

is a tool and as such it is neutral between legitimate

and illegitimate uses. Being neutral, the demand for

access is not wrong and indeed it is wrong to deny

access or prevent someone from having access

(without justification). Thus all three conditions ((1)

to (3) above) are satisfied. In some countries,

governments have made it a national policy to

provide internet access, or adding it to the list of

things that their citizens are accustomed to

receiving, as a matter of right, from their

governments, such as health care and education. For

such countries, Condition (4) is also satisfied,

making internet access a claimable right against

some specific entity, or making the provision of

access a duty of right.

Given its enormous potential to meet scientific,

commercial, educational and entertainment needs,

the right of access to the internet is a significant

right. Indeed, despite some reservations from human

rights promoters, the internet is widely recognized as

an essential tool in advancing human rights causes.

Furthermore, one effective way of closing the digital

divide is to make internet access a responsibility of

the world community. The case for making internet

access itself a human right is certainly weighty.

Nevertheless, given the account of human rights

above, it is not a human right; it would not make

philosophical good sense, to borrow Williams’

words, to have it recognized as a human right.

We can begin with the last Condition above.

Internet access is a matter of degrees, depending on

variables such as the extent of satellite connections,

bandwidths, broadband connectivity, wireless

networks and so on. If there is a duty to provide

access, it will be at best an imperfect duty (in the

Kantian sense), like the duty to be benevolent, which

does not entail any specific level of benevolence. As

such, it would be difficult to determine whether and

to what extent the responsible agent has fulfilled its

duty to provide access, or has failed in such duty.

Differently put, it would be difficult to determine

whether the right to internet access has been

respected or violated. It may be possible of course to

specify the level of access, or defining technically

the notion of “minimum access” to satisfy (8). If this

can be done then it is this minimum access that is the

candidate for the human right status.

Even if “minimum access” can satisfy (8), it is

likely to fail other conditions. Politically at least, it is

not clear how a case can be made out for making

“minimum access” a matter of “cross-state

demandability,” or making failure to provide it a

matter of international condemnation and sanction.

However, (7) above is a weaker condition than

Skorupski’s “cross-state demandability.” It may be

possible to make “minimum access” a matter of

great concern to the international community, great

enough to make it justifiable to put pressures on

those states that fail to provide it.

The test for making “minimum internet access” a

human right rests on whether (5) or (6) can be met,

and it does not look like it will pass the test. There is

clearly no universal interest in or desire for internet

access. Many people are perfectly happy with

having nothing to do with the internet. To be sure, it

is likely that every life is touched in some way by

the internet, but the fact remains that many people

would rather that their lives are free from it. Certain

evils may be necessary, even universally necessary,

but they remain evils to which there is, or ought to

be, an aversion rather than an attraction. Ubiquity is

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not the same thing as universal desirability.

Condition (5) is not met.

It has been conceded that the internet is a useful

tool generally and indeed essential for human rights

work. However, it remains a tool and its value lies in

being a tool. Thus, it is not intrinsically valuable,

that is, valuable of, in and by itself. Conceivably,

technologies will develop in such a way that it will

no longer be valuable, like many other valuable

technologies in the past. The value of an intrinsically

valuable thing (such as “life, liberty and security of

person”) does not depend on the whims of

technological progress, or anything else. In any case,

being deprived of internet access does not count as a

serious threat to human dignity and thus does not

count as a serious deprivation as stipulated in (6).

5 CONCLUSIONS

The importance of and the need for internet access

are undeniable. If it is declared a human right, there

is a good chance that progress will be made towards

narrowing the digital divide. The case for making it

such is certainly weighty. However, the moral status

of human rights is so lofty that it would be unwise to

admit into their ranks anything that fails certain

stringent conditions. Such conditions have been

proposed in this paper and it has been argued that

internet access, even of the minimum kind, fails to

meet the crucial ones.

REFERENCES

Best, M.L., 2004. Can the Internet Be a Human Right?

http://www.du.edu/korbel/hrhw/volumes/2004/best-

2004.pdf

Doctorow, Cory, 2009. Homeless People and the Internet.

http://boingboing.net/2009/05/30/homeless-people-

and.htm.

Hick, Steven, Edward F. Halpin and Eric Hoskins, 2000.

Human Rights and the Internet. Palgrave Macmillan.

New York.

Peacock, Anne, 2005. The Digital Divide and Human

Rights – What the EU Should Do at the World

Summit on Information Society, 2005.

http://www.eumap.org/journal/features/2004/infohr1/p

eacock.

Skorupski, John, 2010. Human Rights. In The Philosophy

of International Law. Ed. Samantha Besson and John

Tasioulas. Oxford University Press. Oxford.

Williams, Bernard, 2005. In the Beginning Was the Deed.

Princeton University Press. Princeton.

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