A Right to Free Internet? On Internet Access and Social Rights

133 Pages Posted: 18 Nov 2013

Date Written: November 17, 2013

Abstract

An analysis of how the positive, rather than the negative, dimension of a right to internet access can be enforced by the Judiciary further evidences the extent to which the recognition of this as an autonomous right is viable and indeed required.

In the United States, although the protection of free speech has led to positive state action in many situations and different media, the impossibility of cost-effectively disconnecting the granting of access from the editorial function created unavoidable – even if somewhat abatable – restrictions on the right of free speech of the medium owner. The internet’s original nature of a decentralized and asynchronous communication environment radically changed this context such that promoting free speech by ensuring access to the internet can be achieved without the right-constraining implications of the right of reply, access to the press or must-carry mechanisms.

In jurisdictions where social rights are not enforced by constitutional review, the acknowledgment of a positive dimension of the right to internet access or of the right to free speech operates as a justification for restriction of other rights in order to carry out digital inclusion policies. In those constitutional orders where social rights are enforceable by courts, acknowledging a constitutional right to internet access does not automatically lead to the recognition of a subjective right or entitlement of everyone to free broadband. Because due consideration of budgetary constraints and of the progressive implementation character of the right are made, an entitlement to material provisions only arises in situations where an individual cannot provide internet access for itself and lack thereof keeps such individual from leading a dignified life. Prior enactment of digital inclusion policies significantly lessens the legislator’s discretion in choosing to reverse the realization of the right, just as discriminating disadvantaged groups by excluding them from said policies warrants stricter judicial review.

Keywords: Internet Access, Constitutional Rights, Social Rights, Judicial Review

Suggested Citation

Hartmann, Ivar Alberto, A Right to Free Internet? On Internet Access and Social Rights (November 17, 2013). Suffolk University Journal of High Technology Law, Vol. XIII, No. 2, 2013. Available at SSRN: https://ssrn.com/abstract=2355900

Ivar Alberto Hartmann (Contact Author)

FGV Law School Rio de Janeiro ( email )

Praia de Botafogo, 190, 13° andar
Rio de Janeiro, 22250-900
Brazil

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