The online symposium on the value of Internet Openness at the time of COVID-19 is a joint outcome of the Internet Governance Forum coalition on Net Neutrality and Community Connectivity. This is the seventh article in the series. Read all the articles in the symposium here.

Prof. Dr. Rolf H. Weber

New Concepts of Internet AND Data Access as Human Right

With the advent of the Internet almost thirty years ago, the new technical possibilities were expected to lead to a knowledge-based community, allowing all members of civil society to enjoy a right to information and participation. Human rights constitute the basic framework for society. Thus, the freedom of expression as the right to communicate and the freedom of information as the right of access to information are mainly knowledge-oriented. In situations of a pandemic environment such as COVID-19, these human rights are particularly relevant.

Broadening the Human Rights Approaches

The freedom of expression and, to a lesser extent, the freedom of information are enshrined in most significant international and regional human rights treaties. The typical wordings of international law provisions are centred around the formulation “everyone has the rights to …”. Consequently, the human rights are directed against state interventions into the protected sphere of individuals. Nevertheless, this concept does not exclude that human rights can also be invoked against non-state actors.

New technologies enabling a fuller realisation of communications exchanges have the potential to support those persons who actively seek and impart information. Digital developments are empowering spaces for collaboration and participation in public affairs. Internet access via manifold devices (including mobile devices) also enable (i) people to express themselves more directly in public arenas without having to go through the traditional media gatekeepers and (ii) activists to apply new tools in the defense of human rights.

In view of these assessments, the human rights perceptions should be further broadened into two potentially promising directions

  • Compared with the freedom of expression, the counter-directed freedom of information should get more substantial weightage. Legislators, on an international and a national level, must more deeply avoid restrictions related to this freedom, and guarantee it to all individuals.
  • As far as the scope of application is concerned, a modern human rights approach is required, taking into consideration horizontal and indirect effects of human rights, and obliging non-state actors to comply with human rights.

If such broadened human rights approaches are realised, the right of people to take part in the political and social life, to benefit from scientific progress and to access knowledge and information will become more powerful.

Strengthening Socio-Economic Elements of Access

Different layers constitute the digital environment:

  1. The (physical) infrastructure layer determines the availability of access rights according to the geographical reach of the networks.
  2. The connectivity layer reflects the openness to the infrastructure.
  3. The application layer encompasses the platforms and tools for the navigation of digital content.
  4. The content layer having the closest connection to human rights has an influence on what can be seen, heard and watched as information.

Already 15 years ago, the WSIS Principles crystallised the following goal for an open society: everyone should be able to acquire basic information and electronic education and everyone should have access to infrastructure under adequate economic conditions. Indeed, the freedom of information must be realised by establishing access possibilities, not only to the technical infrastructure, but also to the content, that is, to the informational substance. The capacity of individuals to enjoy their rights in the social and political sphere can only be improved with better Internet AND data access.

A certain “systematic” problem with this assessment consists in the fact that access issues are often not considered human rights, but as elements of economic openness (encompassing open standards, open access/architecture and net neutrality). The Internet Universality (or R-O-A-M) Principles of UNESCO (2014) are an example for this approach, even if the overall model enshrines all aspects in the designed circle. However, an artificial distinction between human rights and economic openness does not appear to be really future-oriented. Moreover, the International Convention on Economic, Social, and Cultural Rights (ICESCR), having been adopted in 1966 together with the International Covenant on Civil and Political Rights, shows the desired parallelism. Article 2 of the ICESCR obliges states to create an environment which enables civil society to make participative decisions and provide basic public services (including infrastructure) to support individuals in the realisation of human rights. Article 15 §1(a) of the ICESCR requires states to see to it that everyone has a right to take part in the cultural life. A similar approach is applicable in the education context. Finally, equal access to infrastructure and information is an area in which the principle of non-discrimination should apply. Indeed, digital means do have the potential for improving the capacity of individuals to realise their rights in the social and political sphere.

Such an approach should be combined with the notion of a “right to development” as already contained in the respective UN Declaration of 1986 (Resolution 4/128). This direction is of particular importance in connection with the UN-Sustainable Development Goals (SDG). A recent UN report on “Shared Responsibility, Global Solidarity” (2020), looking at the socio-economic impacts of COVID-19, shows that almost all the goals are affected by the present pandemic environment. Thus, not only access to information exchanges via the Internet but also access to data plays an increasingly important role.

Extending the Notion of Access

As already outlined, the access to the Internet or, more generally, to the technical infrastructure does not fully cover the needs of the individuals in the digital society, particularly not in times of crises. Such kind of access must be complemented with the access to the informational substance, that is, to the data.

The legal challenge for access rights consists in the fact that data ownership, to the extent such a concept is normatively accepted at all, does not play a decisive role in reality. More important is data control, that is, the person (or enterprise) holding the data and executing the data processing is in an “ownership-like position” and has the power to decide on the use of the data. As a consequence, for the individual being directly or indirectly concerned by the processing of data, the design of data access rules is crucial (particularly if health issues are at stake).

So far, data access rules exist in data protection laws, but the respective rights usually concern the “original” data delivered by the individual. As soon as the data is processed (for example in big data analyses), the controller of the applied processes considers to have changed the character of the data moving them out of the notion of “personal data”. This limitation can be far-reaching, particularly since access rights to non-personal data only exist if sector-specific regulations (as partly in the European Union) are in place.

Looking from a broader perspective, future-oriented efforts should try to develop concepts which allow extending the freedom of information as human right to a broader right of access having a constitutional value. Insofar, a formal adaptation of the existing international legal instruments on human rights appears to be unlikely, court practice would have to step in and interpret the present legal norms in a more extensive way as it also happened in other cases (for example the acceptance of a “right to be forgotten).

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