Fundamental Rights {On|Of|For} The Internet

AUTHOR
Andrea Glorioso

ABSTRACT

Since the inception of its first prototypes in the late ’60s, the internet has certainly come a long way. What used to be an extremely small network – originally designed with military and defence purposes, but very soon turned into a communication system for researchers – has nowadays become an essential element for economies and, most importantly, for societies throughout the world [1].

Although the social significance and implications of this new technology[2] was rather clear both to its original designers (perhaps less so to its funders) and to ‘gearly adopters’, [3] it seems fair to say that it is only in the past decade that the full extent and impact of the internet on societies has become clearer – which does not mean, as this paper will argue, that our level of reflection on and understanding of this relationship is fully satisfactory.

More specifically, this paper argues that it is necessary to broaden our understanding of the relationship between fundamental rights – as enshrined inter alia in the 1948 Universal Declaration of Human Rights, in the 1966 International Covenant on Economic, Social and Cultural Rights and in the 1966 International Covenant on Civil and Political Rights[4] – and the Internet. In particular, the paper argues that we should strive to better understand:

Do or should fundamental rights be changed, or at least declined differently, when their exercise takes place on the internet (e.g. Should the right to freely receive and impart information be refined, in view of the technological possibilities for filtering and blacklisting[5] that abound on the internet) ?

Although the internet, as a human-made piece of technology, does not have rights per se, is it useful to frame the discourse around this topic also in terms of the specific technological characteristics that the internet should be guaranteed to have in order for fundamental rights on the internet to be meaningfully exercise (e.g. Should “network neutrality” be mandatory) ?

Are there fundamental rights – and if so, which ones – that must be particularly safeguarded and promoted in order to make sure that the distributed social – but technology-based – ecosystem of the internet is preserved and, even more importantly, updated and developed to cope with new requirements that might arise, so that, as above, the meaningful exercise of fundamental rights on the internet is preserved (e.g. How far should the right to private initiative be balanced against the intervention of public authorities in developing the internet of the future) ?

The paper will provide a legal, technological and policy framework to discuss these three questions, on the basis both of existing literature and of the ongoing policy initiatives in this area, including, but not limited to, the activities of the dynamic coalition on rights and principles in the context of the internet governance forum,[6] of participants to the world summit on the information society[7], of the council of europe[8] and of other relevant players.

REFERENCES

[1] See inter alia Organisation for Economic Cooperation and Development, Declaration on the Future of the Internet Economy, 2008, available at http://www.oecd.org/dataoecd/49/28/40839436.pdf; and even more importantly the OECD report Shaping policies for the future of the Internet Economy and its annexes (available respectively at http://www.oecd.org/dataoecd/1/29/40821707.pdf and http://www.oecd.org/dataoecd/1/28/40821729.pdf).

[2] In this contribution the definition of ‘technology’ introduced in R.G. Lipsey, K. I. Carlaw, C. T. Bekar, Economic Transformations – General Purpose Technologies and Long Term Economic Growth, Oxford University Press, 2005, p.58, will be used, i.e. “the set of ideas specifying all activities that create economic value […] comprising (1) knowledge about product technologies, the specifications of everything that is produced; (2) knowledge about process technologies, the specifications of all processes by which goods and services are produced; (3) knowledge about organisational technologies, the specification of how productive activity is organised in productive and administrative units for producing present and future goods and services”.

[3] See for example S. Levy, Hackers – Heros of the Computer Revolution, Anchor Press, 1984.

[4] As mentioned, the references to these three instruments should not be interpreted as limiting the scope of the necessary analysis. Many other instruments, some of which are available for consultation at http://www2.ohchr.org/english/law/, play a central role in this reflection.

[5] See inter alia R. Deibert, J. Palfrey, R. Rohozinski, J. Zittrain (eds.), Access Denied: The Practice and Policy of Global Internet Filtering, MIT Press, 2008, as well as the reports of the OpenNet Initiative (http://opennet.net/) and their proposed taxonomy (http://opennet.net/about-filtering).

[6] See http://www.internetrightsandprinciples.org/.

[7] See http://www.itu.int/wsis/.

[8] See http://www.coe.int/ and in particular the declaration on freedom of communication on the internet adopted by the committee of ministers on 28 may 2003 at the 840th meeting of the ministers’ deputies) and the resolution on internet governance and critical internet resources (adopted by the conference of ministers on 29 may 2009 at the 1st council of europe conference of ministers responsible for media and new communication services).

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