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Internet access as a fundamental human right?

By Kristopher A. Nelson in

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On June 10th, France’s version of the Supreme Court struck down parts of a new French law known as HADOPI:

France’s highest court, the Constitutional Council, ruled that access to the internet is a “fundamental human right” this week in striking down a controversial “three strikes” anti-piracy law.

via Is Internet Access a Fundamental Human Right? France’s High Court Says Yes.

The decision, in paragraph 12, goes back to the 1789 Declaration of the Rights of Man and Citizen to say ground its decision in terms of free expression of thoughts and ideas:

La libre communication des pensées et des opinions est un des droits les plus précieux de l’homme : tout citoyen peut donc parler, écrire, imprimer librement, sauf à répondre de l’abus de cette liberté dans les cas déterminés par la loi. (The free expression of thoughts and of opinions is one of the most precious rights of humanity: all citizens  can speak, write, freely print, except in cases of abuse as determined by law.)

Nonetheless, the court does not say that restrictions as in HADOPI are unconstitutional, since they also clearly point out (as the quote above says) that rights of free expression can be limited to prevent “abuse” – such as to prevent copyright infringement. However, in American legal terms, I might call this entire section “dicta,” but the French civil law system is different, of course. Despite connecting internet access to the fundamental right to freedom of speech and thought, this was not the basis for the court’s decision, although it certainly informed it.

Instead, several other, perhaps equally important concepts, are at issue:

  1. The French legal system requires a presumption of innocence, and the legislature cannot change this. (See paragraph 17 and 18.)
  2. The sanction, after three reported incidents of infringement, involved cutting off Internet access. The court believed, essentially, that this was too great a sanction to allow a mere administrative agency the power to implement it. (This is clearly informed by an idea of Internet access facilitating free communication, and thus comes closest to making Internet access part of such a right). (See paragraph 16.)

  3. While the legislature can balance the right of privacy and the protection of intellectual property, entrusting a private entity with surveillance powers unconstitutionally interferes with the right to privacy. (See paragraphs 26 and 27.) As part of this, in paragraph 30, the court also forbid monitoring or interception of private communications in order to combat copyright infringement.

An interesting ruling that, while it does not quite equate Internet access to other human rights, certainly suggests that it might be a component in freedom of expression – certainly I can imagine a parallel to destroying a newspapers printing press, for example, as having a similar chilling effect on expression.