The technological progress that we have witnessed over the course of the last decades is rightfully sparking a meaningful debate over how far do we need to go in order to bring our conception of fundamental rights in line with the modern ways. We present you with an insightful read and we hope that you will enjoy it as much as we did. 

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Adrian Hodiș

Adrian graduated from the Babeș-Bolyai University of Cluj-Napoca, Faculty of Law in 2012. He holds an LLM degree in Private Law Institutions from the same university and is currently an attorney-at-law at a local law firm in Cluj-Napoca. After graduation, he doubled his work as an attorney with an academic position at the law faculty he graduated from. As a teaching assistant, he works with third year students on matters of Employment Law. 

Xenia Burghelea

Xenia graduated Babes-Bolyai University of Cluj-Napoca, Faculty of Law in 2011, holding as well an LLM degree in Private Law Institutions, from the same university. Currently she is a lawyer at Bucharest law firm, practicing both in Cluj-Napoca as well as in Bucharest, meanwhile acting as a teaching assistant within Employment Law department of the upper mentioned university, and as a Coordinator of the BBU Debate Society and trainer of the Novices Club, extensively participating in international debate tournaments.

Opening Statement - Adrian

It was during an episode of the American show ‘Today’ back in the mid-nineties that co-hosts Katie Couric and Bryant Gumbel were genuinely voicing a then-legitimate question: ‘What is Internet anyway?’ Some twenty years have passed since then and an attempt to explain what the Internet stands for would apparently seem ludicrous today as the daily use of the Internet technology in any shape or form is, quite simply, inescapable and commonplace for all. 

…or is it really? It has been known for a fact that, despite its fast-growing spread, no less than two thirds of the world’s population is currently not connected to the Internet. In other words, one out of three people has never sent an e-mail to a friend, never googled the telephone number of an emergency hospital or never browsed the website of a university in search for a better education. I argue that the right to Internet access, as it primarily relates to a most basic set of human needs, should be regarded as a fundamental human right and treated as such.

I should, however, point out up front that guaranteed access to high-speed broadband, limitless download capacity or countless hours of high-definition video streaming for 7.3 billion people worldwide is not what I am pleading for; it is the access to the more basic, yet vital information that interests me. That is to say that the right to Internet access should be considered fundamentally inherent to all humans only insofar as the access to the most important information is concerned. To this extent, it is my view that the unrestricted availability of Internet technology is indeed a basic human right, rather than a privilege set aside for the better half of the world.

Talks about the concept of freedom of speech (to which the right to freedom of expression is closely related) date as far back as the 6th century BC; the right itself has long been recognized under Article 19 of the Universal Declaration of Human Rights. It is also known that the right to freedom of assembly benefits from the same recognition under Article 20 of the Declaration. The evocation of both these human rights was, of course, not random, for they are so fittingly encompassed by what the Internet technology stands for. At the same time, their respective infringements also bring about precisely the main concerns regarding free access to Internet services (e.g. the abusive restrictions on online content or the unreasonable blocking of certain websites, online tools or even Internet users themselves) for, as the experience of the last decade has shown, to apply unwanted censorship on the right to broadband is to unlawfully apply limitations to the two aforementioned fundamental rights. 

In another train of thoughts, the real focus should be on the constructive potential of the Internet technology. Above all, the Internet has always been a communication technology; it enables us to connect (I may have just used the most prominent verb of our times) and, through this very connectedness, to achieve the unthinkable time and again. On a more personal note, I have always wanted to make the world a smaller place. I receive a message from my Brazilian friend on what is it like to work in a law firm based in São Paulo while I have just finished catching up with my Lithuanian friend currently pursuing an LL.M. in the U.S. Suffice it to say that I would not be able to do any of this with such ease and convenience if it were not for the Internet technology.

Finally, instead of drawing a conclusion, I invite you to ponder on the following: what was the status of the right to life, liberty, personal security, equality before the law, before receiving any formal recognition, and what is the most common stance on these rights now?  

 

Opening Statement - Xenia

Tools cannot transcend jurisdictions. Tools do not belong without presumption or cost of the privilege to all human rights. In my humble perspective, this is what Internet Access is – a mere tool.

In order to declare a right ‘fundamental’, one needs to understand when and why something is recognized as a fundamental human right, and therefore when a right is granted special legal protection.

Along with our needs or capabilities, our moral vision of the world expands: the way we see things, the way we treat things, everything changes and extends. Three generations of rights evolved to the point of being recognized as fundamental: (1) civil and political, (2) economic, social and cultural, and (3) collective and group rights. The moment a right is purposefully converted to a fundamental status, it increases the moral burden under which Governments control and limit its exertion. Particularly, if we do not recognize Internet access as a fundamental human right, any authoritarian state can restrict it in more relaxed conditions. We are not contesting these harms. Nonetheless, just because they occur, it does not mean that declaring internet access a fundamental human right is the best way to ensure the dilution of the causes of the upper mentioned harms.

Indeed, the Internet has become a key means by which individuals can exercise their right to freedom of opinion and expression as guaranteed by Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The right to freedom of opinion and expression is both a fundamental human right in its own substantive, as well as an ‘enabler’ of other fundamental rights. Thus, Internet acts as a catalyst for individuals to exercise their right to freedom of opinion and expression, while facilitating the realization of a range of other human rights. 

Yet again, this particular communication technology, despite its vast potential and benefits corroborated with its unique characteristics (speed, worldwide reach and relative anonymity) is a mere enabler of rights, not a right itself. We should acknowledge that internet is valuable as a means to an end, not as an end to itself. The fairest way to characterize human rights is to identify the outcomes that we are trying to ensure: freedom of speech and freedom to access to information are critical freedoms, but they are not bound to any particular technology at any particular time.

A more realistic approach might constitute opting for qualifying and declaring Internet a civil right, and not a fundamental one. Civil rights, by comparison, are conferred upon us by law, not intrinsic to us as human beings. While no government declared a ‘right’ to electricity or phone, we did come close to it with the notion of ‘universal service’, thus the imperative of making it available even in the most remote regions of one’s country. By grasping this idea, we are furtively moving toward the concept of Internet as a civil right, considering that the ensuring access is a… policy made by the government. 

Internet did become an indispensable tool for realising a wide range of human rights, combating inequality, and accelerating development and human progress, yet that should not make us cause a confusion between making a priority for all States to ensure universal access to Internet versus the State’s positive obligation to promote or to facilitate the enjoyment of the right to freedom of expression and the means necessary to exercise this right, including Internet.

While the Internet has introduced an enormously accessible and egalitarian platform for moving information in both directions – as an interactive medium, the individuals being no longer passive recipients - on a global scale, resulting in new ways to allow people to exercise their human and civil rights, facilitating access to Internet is a mean to improve the human condition, and it must be done with an appreciation for the civil rights and fundamental human rights that deserve protection – without pretending that access itself is such a right. 

 

Adrian’s main argument puts the right to Internet access alongside the most basic human needs, as it is based on one’s right to information. He further points to the fact that Internet serves as a communication pillar, which makes it a driver for progress and innovation. Xenia, on the other hand, argues that internet access is simply a tool and cannot be mistaken for a fundamental human right, as it is rather an ‘enabler’ of fundamental rights, such as the right to freedom of opinion and expression. Instead, she says, it should be qualified as a mere civil right. 

Rebuttal - Adrian

In her opening statement, my opponent argues against the recognition of the right to Internet access as a fundamental human right. I feel obliged to salute her remark on the need to understand the specific circumstances under which a certain right is to be awarded the status of a fundamental human right as I, too, share the same view. However, as promising as this commencement was, it is unfortunate that the concept per se did not receive any further considerations.

The main argument of my opponent is that the access to broadband is merely a tool, a means to achieve an expected result, and not the result itself. My opponent implies that the right to Internet access should not be considered fundamental for it would then follow that any state interference with the exercise of this right would simply be more heavily scrutinized, thus morally burdening the governments. While an acknowledgment is expressed as to the fact that, indeed, most of these interferences are intrusive and should be fought against, we are left adrift as far as a feasible solution is concerned. The proposition of the ‘merely civil’ qualification of the right in question is, as we shall see below, superfluous, if not misconceived. There is one more humble observation worth mentioning here: how interesting it is that the three groups of fundamental rights my opponent so rightfully mentioned are all inescapably intertwined today with the right to Internet access?

My opponent also takes on the task of explaining how the Internet technology enables individuals to freely exercise a significant number of rights that are formally considered inherent to all humans. Again, I am more than pleased to concur with this assertion. However, it is my view that the bigger picture is missed; come to think of it, it appears to be obvious that the Internet access enables us to express ourselves, communicate with others, access important information and so forth and, truth be told, one could make a case for its supremacy when it comes to the most frequently used way of exerting those rights. Yet if we reflect a little longer, we might come to the conclusion that the online environment is all of that… and something more. One may ask oneself: what makes this network of interconnected machines a primary enabler for us to make full use of the human rights listed so far in this debate? I dare suggest an answer: it is the convenience of access. It is the availability and its permanence. It is, more often than not, the reliability of the content. It is the sheer speed at which people are able to do so much in so little time. Needless to say, the actual network that is being created is all about connecting the people using the devices, for these devices are, in fact, just a tool. In other words, contrary to my opponent’s reasoning, I argue that the tools are the mere physical machines we use to exercise the right in discussion, whereas the Internet—the network, as I previously put it—, while still more than a tangible object, is ultimately the very connected state of its members. My point is that people should be free to not only enjoy the free exercise of human rights but, as we take a step further—and we must!—, to do so in the most convenient, accessible, reliable and swift way that they themselves have come to create.

According to my opponent, the right to broadband should be qualified as a mere civil right, as opposed to fundamental human rights, suggesting that there would be a qualitative difference between the two concepts. I cannot agree with this assertion for the simple fact that the distinction is not substantiated in law, as the two categories actually collide to contain roughly the same rights (e.g. right to freedom of expression). Even if we were to accept the proposed difference in its treatment, I still plead for treating the issue at stake with maximum severity as the right to Internet access speaks to so many more human needs and values than just the so frequently invoked freedom of expression. As most of the world does not have access to Internet services, gaining it would mean, for instance, better education and healthcare.

 

Rebuttal - Xenia

The opponent’s case encapsulates more of a moral eulogy of the advantages of Internet, rather than advancing particular reasons for which it should be awarded a fundamental status. Even the most cursory examination proves the logic of ‘what was the status of the right to life, liberty, personal security, equality before the law, before receiving any formal recognition and what is the most common stance on these rights now?’ fatally flawed: it is a mistake to place any particular technology in this elevated category, since over time we will end up valuing the wrong things, thus exhausting the political capital and consequently diluting the protection of other rights – freedom of speech itself. There was a time when if you did not have a… horse, it was hard to make a living. But the meaningful right in that case was the right to make a living, not the right to a horse. Today, if we granted a right to have a horse, I am not sure where we would put it (maybe in the infrastructure section). Internet Access, as perfectly put in the opening statements in favor of the debated recognition, helps you get access to other rights, without being undeniable, irrevocable and inherent to survival. The key difference is that there is no justified situation when you can deny someone water – not even if he committed crimes against humanity – but there are situations where you can remove Internet Access: hate speech (when the fundamental right of freedom of speech is abused), child pornography (in order to protect the rights of children), direct and public incitement to commit genocide (with the purpose to protect the rights of others), or advocacy of national racial or religious hatred that constitutes incitement to discrimination, hostility or violence. I do not have to give a plane, but you (the Government) cannot stop me from going wherever I want. I do not have to give you time on air (radio) to complain, but you (the Government) cannot stop me from speaking. These are the lines and distinctions we need to draw in order to assess whether a right is fundamental or not. The fact that Internet promises fancy benefits does not mean that totalitarian regimes will respect it just because we declared it fundamental and the international community will, therefore, have more bargaining power. 

Scraping away the calculated diction from internet primarily relates to a most basic set of human needs, few problems emerge: if we strip away the content (information) available on Internet, can Internet survive and make sense on its own? No. What you have striped (the people) off is their fundamental right to information access (or more), Internet thus plainly meeting the constitutive of a tool or infrastructure for exercising a fundamental right: whether it is enjoyment of a wide range of human rights, assert those same rights or participate in public debates concerning social, economic and political changes to improve their situation and therefore subduing the perpetration of the same ‘digital divide’.

Contrariwise, there are palpable harms derived from recognizing Internet Access as a fundamental human right. If so, Governments not only should fully guarantee the right to freedom of expression as a norm, thus considering the limitation of Internet Access an exception (a principle that should never be reversed) - refraining from restricting the content on the Internet - but also have a positive obligation of facilitating Internet Access: adopt effective policies and strategies in order to make the Internet widely available, accessible and affordable for all. Unfortunately, given that access to basic commodities such as electricity remains difficult in many developing states, we should be aware that universal access to the Internet for all individuals worldwide cannot be achieved without incremental change – that implying a heavy focusing our political capital on exercising fully and respecting the already recognized fundamental human rights, prioritising this way between those fundamental human rights and Internet Access. Therefore, taking into account we cannot (yet) ensure a uniform facilitation and enjoyment the right to freedom of expression and other rights that are enabled by this particular one, apparently by bridging the ‘digital divide’, we are conversely diluting the focus and the efforts (political capital) necessary for reaching a similar point of respect worldwide (available now solely in Western liberal democracies), which represents a tangible harm.      

 

 

At this point, Adrian refutes Xenia’s line of reasoning which regards the Internet as a mere tool, and argues that the Internet is the ‘connected state’ of its members, whereas the tools are simply the physical machines used to exercise this right. He further argues that the distinction drawn by Xenia between civil rights and fundamental human rights is not substantiated in law, as their contents often overlap. Xenia makes a compelling observation, pointing to the fact that we must pay attention to what we decide to protect as a fundamental right, given that there are various situations in which Internet access may be removed, such as hate speech of child pornography, as opposed to, she says, denying someone water, which is never justified. 

I hope you enjoyed the debate and the conclusions will help you form an opinion of your own!  

 

Conclusions - Adrian

I plead for the recognition of the right to Internet access as a fundamental human right insofar as the access to the most basic, yet vital content is concerned. Although this formal recognition would not constitute an immediate solution to the problems mentioned above, it would undoubtedly be a very important step towards that end. For all intents and purposes, looking back at the other fundamental human rights before and after their recognition as such, I believe we have legitimate reasons to expect the right to broadband to follow suit.

My opponent argues two things, in the following order: first, the access to Internet technology cannot be seen as an end in itself, but rather as a tool; second, the access to Internet services is in fact a ‘mere’ civil right. I demonstrated how the right to broadband is neither a tool nor should it be something less than a fundamental human right. It is first of all not just a tool but a right of its own because its functions surpass the mere accumulation of other human rights’ exertions; its uniqueness derives from its convenience and availability, two features everybody should be entitled to enjoy. It then meets all the requirements to be qualified as a fundamental human right in light of the current state of technological progress and bearing in mind the significant improvement the majority of the world’s population would feel in their lives thanks to gaining access to Internet.  

Conclusions - Xenia

The online discourse has rapidly become one of the driving forces in political change around the world, becoming a tool for social justice. By not providing affordable internet access to everyone, we might be blocking democracy and political power. However, confusing Internet Access – inherently a tool in this House’ perspective - with the fundamental right of freedom of speech, freedom of expression and access to information can do a lot of harm, particularly misusing the political and social capital necessary in order to ensure the respect and enjoyment of the already recognized fundamental human rights. Although Internet acts as a catalyst for individuals to exercise their right to freedom of opinion and expression, while facilitating the realization of a range of other human rights and therefore representing an indispensable tool for that wide realization while combating inequality and accelerating development and human progress, devoid of content it cannot exist, therefore survive as a right in its own accord. Instead of focusing to declare Internet Access a fundamental human right and therefore prioritising on those policies, we should treat it as, yes, unprecedented means that enables and catalyzes the capitalization freedom of opinion and expression and not convert its revolutionary effect into a right itself without losing from our sight the end itself – freedom of speech, freedom of expression and contributing to the human capital through its educational benefits.

 

 

Disclaimer: The arguments presented in this debate do not represent the opinions of the two authors. 

 


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