{"id":15909,"date":"2021-11-29T14:00:19","date_gmt":"2021-11-29T13:00:19","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=15909"},"modified":"2021-12-01T11:08:01","modified_gmt":"2021-12-01T10:08:01","slug":"its-all-about-choice","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/its-all-about-choice\/","title":{"rendered":"It’s All About Choice"},"content":{"rendered":"

Time and again, a debate<\/a> pops up on whether access to the internet should be made a human right. While some have favoured universal access thereto with as little restrictions as possible (for instance, La Rue<\/a> or the UN Human Rights Council<\/a>), others have argued against, as \u2013 for instance \u2013 technology was only an \u2018enabler of rights\u2019 (Cerf<\/a>)<\/u>. Ten years ago, Paul De Hert and I could not but partake in this debate: in our 2012 article<\/a> we saw more benefits than disadvantages of protecting internet access at the highest legal level.<\/p>\n

Back then, this debate concerned an option<\/em> to access the internet. Over the past years, however, while the use of the internet \u2013 and, more broadly, the use of (new) technologies \u2013 has accelerated, it increasingly ceased to be a mere option, a choice, a (legal) entitlement or a (human) right. Rather, it has turned into a (de facto<\/em>) obligation<\/em> for anyone who exercises their rights or fulfils their duties. These days, for instance, various services have become available predominantly \u2013 and sometimes only<\/em> \u2013 via the internet (for instance, banking services, passenger location forms<\/a> or applications for social assistance, as depicted in I, Daniel Blake<\/em><\/a>). Overall, life without (a \u2018smart\u2019 phone) internet access has become unduly burdensome and \u2013 at times \u2013 impossible.<\/p>\n

These developments beg many questions and some of them include whether and to what extent people could be (or: should be) forced to use the internet, or whether such an obligation conforms to democratic standards. These questions can be considered from many angles such as ethics (is it good?) or law (is it legal?), and, therein, human rights (does it interfere with these rights? is this interference proportionate?). Hence, in this blogpost, I look at whether the European Convention on Human Rights (ECHR, European Convention) and the jurisprudence from the European Court of Human Rights (European Court) can protect individuals against such an obligation.<\/p>\n

Assuming that a matter of human rights importance is at stake, these rights might be invoked and interpreted in a way that people remain free not to use the internet. This is so because human rights are not static, but \u2013 instead \u2013 they continuously evolve, albeit not without limits, to reflect the challenges, needs and wishes of individuals and societies across time and space. Technically speaking, these rights evolve, inter alia<\/em>, with the help of doctrines such as purposive interpretation, \u2018living instruments\u2019 or \u2018practical and effective\u2019 protection (Hale<\/a>).<\/p>\n

Is There A Right Not to Do Something?<\/strong><\/p>\n

In this interpretative exercise, I first looked for the rights in the European Convention and for related case-law in which the European Court ruled that a certain behaviour<\/em> (action or inaction) \u2013 or a means<\/em> (form) of its realisation \u2013 cannot be imposed. Such rights and case-law might be invoked mutatis mutandis<\/em> to protect from the obligation to use the internet.<\/p>\n

The most obvious \u2018candidate\u2019 is the freedom of expression (Article 10 ECHR). This right is characterised by the protection not only of the contents<\/em> of the expression, but also of the means<\/em> thereof (Ahmet Yildirim<\/em><\/a>, 2012, \u00a7 50). Furthermore, it typically protects not only the right to impart<\/em> the expression (to make it known), but also the right to receive<\/em> information (Guerra<\/em><\/a>, 1998, \u00a7 53). At the same time, it might include a right not to express<\/em> oneself (Gillberg<\/em><\/a>, 2012, \u00a7 86).<\/p>\n

The European Court has already had the occasion to rule on a complaint concerning a denial or restriction of access to the internet. For example, in Kalda<\/em><\/a> (2015), a case concerning a prisoner\u2019s wish to obtain legal information via the internet, it ruled in favour of protecting \u2018a particular means<\/em> of accessing the information\u2019 (\u00a7 43; emphasis added) as it \u2018has for the first time stated that denying a prisoner access to the Internet may amount to a violation of Article 10\u2019 ECHR (Judge Kj\u00f8lbro, dissenting opinion). Subsequently, the European Court reached a similar decision in Jankovskis<\/em><\/a> (2017), a case concerning prisoner\u2019s wish to obtain information about enrolling at university via the internet.<\/p>\n

This begs a question if the opposite \u2013 an obligation to use the internet \u2013 could amount to a violation of the freedom of expression as imposing a particular means of exercising a right?<\/p>\n

Other \u2018candidates\u2019 that could be invoked include (in a random order and not exhaustively):<\/p>\n