In this feature we revisit older posts which remain of current interest. In this updated post from May 2010 we consider the “human right to internet access”.
At an early stage of the street protests the Egyptian government cut off almost all Internet and cell service. It has been suggested that young activists in in Egypt, in Tunisia and elsewhere in the Middle East, have used these electronic tools to organize protests. This has led a number of commentators to revisit the question as to whether the right to access the Internet and other electronic media is becoming a new human right.
This is, unsurprisingly, not a right which appears in any “human rights convention” or constitution. Nevertheless, it is not just something contemplated by eccentric bloggers. Such a right received legal recognition by the French “Conseil Constitutionel” in 2009 in Decision n° 2009-580 of June 10th 2009.
The Conseil was considering French legislation which allowed the Committee for the Protection of Copyright to cut off internet access to those who continued to download copyright material illicitly after two warnings. This was considered to be incompatible with the 1789 “Declaration of the Rights of Man”
“Article 11 of the Declaration of the Rights of Man and the Citizen of 1789 proclaims : “The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may thus speak, write and publish freely, except when such freedom is misused in cases determined by Law”. In the current state of the means of communication and given the generalized development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions, this right implies freedom to access such services”. [12]
As a result, Parliament was not at liberty to allow the Committee, which was an administrative body not a court, to determine whether or not someone had access to the internet.
The powers of this Committee may thus lead to restricting the right of any person to exercise his right to express himself and communicate freely, in particular from his own home. In these conditions, in view of the freedom guaranteed by Article 11 of the Declaration of 1789, Parliament was not at liberty, irrespective of the guarantees accompanying the imposition of penalties, to vest an administrative authority with such powers” [16]
If “access to the internet” is a necessary part of the freedom to communicate then, by similar reasoning, it should also form part of the “freedom of expression” guaranteed by Article 10 of the European Convention on Human Rights. Thus it could be argued that in Britain a statutory provision which allowed an administrative body to remove a person’s internet access would be incompatible with Article 10.
The argument that access to the internet is a human right is in line with worldwide public opinion. In 2010 the BBC reported the results of an opinion poll conducted for the BBC World Service showed that nearly 80% of respondents agreed or strongly agreed that access to the internet was a “fundamental right”.
However, a note of caution is sounded by the judgment of the High Court in Ireland in EMI Records v Eircom [2010] IEHC 108 – a case in which the plaintiff record company and others sought to prevent the theft of copyrighted material over the internet by compelling the service provider to cut off the offending individuals. Mr Justice Charleton said
“The internet is only a means of communication. It has not rewritten the legal rules of each nation through which it passes. It is not an amorphous extraterrestrial body with an entitlement to norms that run counter to the fundamental principles of human rights”.
He went on to approve an agreement under the terms of which the service provider imposed a “three strikes and you’re out” policy on those involved in illegal file sharing. He suggested that the right to be identified with and to reasonably exploit one’s own original creative endeavour is a human right. In relation to “disconnection” he said
“This is a serious sanction. Some would argue that it is an imposition on human freedom. There is no freedom, however, to break the law. Further, while it is convenient to have internet access at home, most people in Ireland have only to walk down to their local town centre to gain access for around €1.50 an hour”.
This reminds us that, whatever the status of the “right to internet access” it is a right which still needs to be balanced against other rights – for example the right of copyright holders to protect and exploit the products of their work. The right to internet access, like the right to freedom of expression from which it is emerging, is not absolute.
Dear Inforrm:
EC Directive 2002/121/EC as amended, is due to come into force in March/April 2011 in most of the EU Member States.
The reason I highlight this Directive is that an important amendment is contained therein as amended by EC Directive 2009/140/EC. That amendment is to Article 1, Section 3a. This reads:
“3a. Measures taken by Member States regarding end-users access’ to, or use of, services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.
Any of these measures regarding end-users’ access to, or use of, services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of the presumption of innocence and the right to privacy. A prior, fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to effective and timely judicial review shall be guaranteed.”
The debated amendment was entitled Amendment 138 and was hugely controversial in various Member States due to actions in terms of illegal downloaders and IP infringers and of course cases in existence at that time – Ireland: EMI v eircom/UPC. Belgium: Sabam v Tiscali SpA ‘Scarlett’ – Which is the subject of a TEU 234/TFEU 267 preliminary reference.
You might be interested to note that the approved case in EMI v eircom [2010] IEHC 108 that you cite above was a ruling in terms of a settlement agreement and not the full unabridged trial of the matter. So in terms of the comment, it is obiter.
The later case of EMI v UPC [2010] IEHC 377 – Link at end.
I wanted to highlight sections from the linked Judgment below.
The Conclusion reads like this:
“Solutions are available to the problem of internet copyright piracy. It is not surprising that the legislative response laid down in our country in the Copyright and Related Rights Act 2000, at a time when this problem was not perceived to be as threatening to the creative and retail economy as it has become in 2010, has made no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright. In failing to provide legislative provisions for blocking, diverting and interrupting internet copyright theft, Ireland is not yet fully in compliance with its obligations under European law. Instead, the only relevant power that the courts are given is to require an internet hosting service to remove copyright material. Respecting, as it does, the doctrine of separation of powers and the rule of law, the Court cannot move to grant injunctive relief to the recording companies against internet piracy, even though that relief is merited on the facts.
The Court thus declines injunctive relief.”
Background:
“95. This section, in its ordinary construction, applies to any of the activities described in s. 40(1). Facilities are needed, including an internet service provider, to access a host site containing the work, or to access peer-to-peer copies of the work residing illegally on home computers. Facilities are also needed to perform a work in public or to broadcast it, put it on a cable programme service, print it without permission, rent it out, or lend copies. The facilities needed will, in each case, differ. In the case of a library, the situation is simple. The library is a facility whereby copies of “Degrees of Guilt” are made available. That is a present and a continuing threat to the rights of the author where he has not so given permission. In the case of the hosting site on the internet, or a pay for access cable radio or television service, the work is on the internet site or in the computer storage facilities of the media company. What can be done about any of the situations is specified in the legislation. Liability is not established, unless there is a warning to the individual or company providing facilities that enable copyright infringement. Even then, the right of the Court to take action, is severely circumscribed by the wording itself. The exception from liability for copyright infringement provided in subs. (3) is qualified in subs (4), so that action can only be taken as follows:-
“(4) Without prejudice to subsection (3), where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove that infringing material as soon as practicable thereafter that person shall also be liable for the infringement.”
96. This subsection is to be construed within its context. Its meaning is to be primarily ascertained from the language chosen by the Oireachtas whereby its intention is conveyed. Where a provision is obscure, ambiguous, or a literal interpretation would be absurd, or would fail to reflect the plain intention of the Oireachtas, that intention should be ascertained from the Act itself, in order to give effect to the purpose of the legislature; s. 5 of the Interpretation Act 2005. If the meaning of the text is, however, unambiguous, the task of the court is to give effect to that literal meaning. The court is not entitled to give an opinion as to sound policy by way of a judgment, much less give effect to it, but, rather, to implement the intention of the Oireachtas. Even though a deviation from the plain meaning expressed may be desirable, the court has no authority to pursue any course which would involve rewriting the text. That approach undermines the rule of law, which is based on predictability and on the separation of powers.
97. Words are not to be presumed superfluous. Rather, I start from the position that effect should be given to all of the words within a section, or subsection, where that is possible. While sometimes, in the way that lawyers offer pleadings in the alternative, such as a claim for breach of duty and a claim for negligence, the Oireachtas might well be drawn into the use of words with a view to emphasising certainty, the ordinary rule as to economy in the use of language should be applied. An ordinary word should be given an ordinary meaning but, at times, I find the use of a dictionary helpful in clarifying an interpretation. The Act contains a number of specialist terms. These are to be given a technical meaning, but are not, beyond the use of the word internet, germane to this decision. I have been assisted in this analysis by the expert re-statement of the relevant rules in David Dodd ‘Statutory Interpretation in Ireland’ (Tottel, Dublin, 2008).
98. Under s. 40(5), the Minister is entitled to prescribe the form of a notice to be given whereby the person who provides facilities to infringe copyright, and fails to remove the infringing material, becomes liable. The draft regulation made by officials of the Minister has been referred to in evidence. I have no regard to it for two reasons. Firstly, it was never brought into law. Secondly, it constitutes only, at most, a guide to the opinion of one individual on the interpretation of the interrelatedness of subs. (1), (3) and (4) of s.40.”
View:
The law and obligations here are very unlikely to change anytime soon. The reliefs sought in the Statement of Claim and indeed Summons were similar to the eircom case.
This Judgment appears not to have been appealed at the time of editing this comment.
The ‘proportionality’ aspect and is similar if not the same to the balancing argument you make above save for the section I highlight and conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Ronan
Link to EMI v UPC: http://www.courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/91e37796b696d34a802577dd0053352d?OpenDocument&Highlight=0,UPC