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Is There A Human Right To Internet Access?
Jesse Tomalty considers what human rights are and how they’re justified.
A few months ago there was a spate of headlines announcing that the UN had made internet access a human right. It turns out that this claim was rather misleading. What the UN did was pass a resolution emphasizing the importance of internet access for the fulfillment of many human rights. The resolution called for states to take measures to work towards universal access to the internet, and it condoned heavy restrictions on access to content on the internet as a violation of human rights (see article19.org/data/files/Internet_Statement_Adopted.pdf). However, it does not follow from this that there is now a human right to internet access. Something can enable the fulfillment of human rights without itself being a human right. For example, having shoes enables a number of human rights, such as the right to freedom of movement and the right to an adequate standard of living; but it would be very strange indeed to say that there is a human right to shoes. Conversely, interference with people’s enjoyment of some good can constitute a violation of their rights without that good being a human right. For example, it would be a violation of the right to privacy if the government read people’s credit card bills without their consent; but there is no specific human right not to have one’s credit card bills read. Nonetheless, if internet access really is as important as the UN resolution suggests, maybe it should be considered a human right. Popular opinion seems to support this view. According to a survey conducted in 2012 by the Internet Society, 83% of the more than 10,000 respondents from twenty different countries agreed that ‘Access to the internet should be considered a basic human right’ (internetsociety.org/sites/default/files/GIUS2012-GlobalData-Table-20121120_0.pdf).
Despite popular opinion, I doubt that access to the internet can appropriately be characterized as a human right (let alone a basic one). To see why, we need to consider what human rights are and how they’re justified.
Natural & Legal Rights
We can begin by clearing up an ambiguity in the use of the term ‘human right’. Sometimes when people talk about human rights, what they’re referring to are the legal or quasi-legal rights articulated in international human rights documents, such as the United Nations’ Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. Let’s call these ‘legal human rights’. Other times when people talk about human rights, what they are referring to are natural rights – the universal moral rights taken to be held by all humans simply in virtue of being human. Much of the time people talking about human rights are actually equivocating between these distinct concepts. It’s important to avoid this equivocation, however, because legal human rights and natural rights are different sorts of moral entities, with different roles. We can therefore ask both whether there is a natural right to internet access and whether there ought to be a legal human right to it.
As said, natural rights are universal moral rights thought to be held by all humans simply in virtue of their being human. As such, they must be grounded in some morally relevant feature(s) of what it is to be human. Although there is no consensus on what these features are, the dominant and most plausible view is that natural rights are grounded in fundamental interests shared by all, or at least the vast majority, of humans. On this view, there is a natural right not to be arbitrarily killed, because everyone has an important interest in not being killed; there is a natural right not to be tortured, because everyone has an important interest in not being tortured; there is a natural right not to be forced into slavery, because everyone has an important interest in not being enslaved; and so on.
With this in mind, it’s difficult to see how there could be a natural right to internet access, because the interest in having access to the internet is not sufficiently fundamental. How could it be, given its historical contingency? Thousands of years ago, humans had interests in not being killed, tortured, or enslaved, and it’s reasonable to suppose that humans will have such interests thousands of years from now (assuming there still are any humans). But it’s a stretch to say that the ancient Greeks, for example, had an interest in having internet access, given that they couldn’t even conceive of this technology. And we can’t know whether humans in the future will have such an interest: they might not if the internet is replaced by some other, more powerful, technology. Natural rights are supposed to be held universally by all humans simply in virtue of being human. It therefore doesn’t make sense to say that there is a natural right to internet access.
Interestingly though, it doesn’t follow from this that there shouldn’t be alegal right to internet access. Unlike natural rights, legal rights are social constructs. Natural rights either exist or they don’t. There is no sense in asking whether there ought to be a particular natural right, since this is not up to us to decide. Natural rights have a moral reality that is beyond our ability to manipulate. By contrast, the content of legal rights is up to us. Of course, not all of us have a say over what legal rights there are, but the point is that their content is decided by people, not discovered. So even though a right to internet access isn’t currently included in international human rights legislation, it nevertheless makes sense to ask whether there ought to be one. And in order to ascertain whether there ought to be a legal human right to internet access, we need to consider how the contents of legal human rights are justified.
Internet Rights © Ken Laidlaw 2017. Please visit www.kenlaidlaw.com to see more of Ken’s art.
Legal Rights Are Not Natural Rights
It is sometimes assumed that legal human rights are just legal expressions of natural rights, and that the question of whether there ought to be a legal right to some good therefore depends entirely on whether there is a natural right to it. On this view, the fact that there is no natural right to internet access settles the question of whether there ought to be a corresponding legal right. We should, however, reject this view. First, when we look at the actual content of international human rights legislation, we find that it is both wider and more specific than that of natural rights. For example, the Universal Declaration of Human Rights includes a right to a nationality as well as a right to form and join trade unions. Nationality and trade unions are both historically contingent, and therefore cannot be the objects of natural rights. It might be argued that these rights should not, then, be included among legal human rights. But why should we think this in the absence of some good reason for thinking of legal human rights as simply legal expressions of natural rights?
Furthermore, legal human rights have a very different role to natural rights, and so it’s not clear why we should think they have identical content. Natural rights are moral claims held by each human against all moral agents. By contrast, legal rights are legal claims that individuals have specifically against the states to whose power they are subject, and which act as constraints on the sovereignty of those states. To say that legal human rights are just legal expressions of natural rights is to say that only natural rights can serve these functions. But why should we accept this? It doesn’t seem particularly problematic to suppose that all individuals should have legal claims against their governments not to be stripped of their nationality or not to be prevented from forming and joining trade unions. But we have seen that such rights cannot be natural rights.
Although legal human rights are not simply legal expressions of natural rights, then, there is an important connection between them: both natural and legal human rights are grounded in fundamental interests shared by all humans. The difference is that legal human rights can include rights derived in a particular social and historical context from more basic rights. The legal right to nationality, for example, is not grounded in a fundamental interest in nationality held by all humans, since there have not always been nations and there might not always be nations. Instead, people have an interest in having a nationality because in the contemporary world having a nationality is instrumental for the fulfillment of other, more basic interests, some of which ground natural rights. Without a nationality one cannot obtain a passport, for example; and without a passport, one’s freedom of movement is severely limited. Freedom of movement is arguably a fundamental interest shared by all humans, which therefore grounds a natural right to freedom of movement. This interest also provides grounds for a basic legal right to freedom of movement, from which we can derive a more specific legal right to nationality.
Internet Access Rights?
Could a legal human right to internet access be justified in this way? The interest in having internet access is certainly grounded in more basic interests, and some of those interests are the sort that ground natural rights; for example, the interests in freedom of expression and freedom of association. The internet is now perhaps the most important platform for the expression of opinions and the spread of information, and provides a multitude of opportunities for a wide variety of forms of association.
It might be argued that without internet access people can still enjoy the freedom to express themselves and to associate, assuming that they can still gather in public places, publish their opinions in newspapers, and so on. However, the rights to freedom of expression and freedom of association do not require merely that right-holders have at least some opportunity to express themselves and to associate. Rather, they are fulfilled only to the extent that people have adequate opportunities to express themselves and to associate. To arbitrarily prevent people from publishing their opinions in all but one little-read newspaper would constitute a violation of their right to freedom of expression despite their retaining some opportunity to express themselves. Likewise, to arbitrarily prevent people from joining all but one association, organization, party, or club would be a violation of their right to freedom of association, despite their retaining some opportunity to associate with others. Exactly what constitutes adequate opportunity and ability to exercise one’s freedom of expression and association is an important and difficult question; but in view of the tremendous importance of the internet it seems reasonable to hold that to prevent someone from accessing the internet is to deprive her of adequate opportunities to exercise her freedom of expression and association. It looks as though a legal human right to internet access might therefore be derivable from the more basic natural rights to freedom of expression and freedom of association, in the same way that a legal human right to nationality can be derived from the more basic natural right to freedom of movement.
However, there is an important difference between nationality and the internet. It is impractical to have international laws that constantly need to be updated. As such, legal human rights not only need to be of great importance now, but also for the foreseeable future. So the lightning-fast pace of technological progress makes the internet, and consequently a legal right to it, much more precarious. The fact that there is no natural right to internet access does not preclude the possibility that there ought to be a legal human right to it, since internet access is nowadays incredibly important for the fulfillment of other human rights. But given the likelihood of the internet becoming obsolete in the not-so-distant future, I’m inclined to think that access to it doesn’t quite warrant the status of an international legal human right.
© Dr Jesse Tomalty 2017
Jesse Tomalty is Associate Professor in Philosophy at the University of Bergen, Norway. She teaches courses in ethics and political philosophy.