Shaping our digital future

The launch of the ‘Digital Rights’ White Paper has been met with varying degrees of criticism not only as to the ‘why’ and ‘what’ but especially as to the ‘where’.

Essentially, the Internet has to be seen not only as an important tool for the enjoyment of fundamental rights but also as a catalyst for the generation and recognition of a whole range of other rights which as yet are not explicitly provided for.

It appears that the scope of the White Paper is not the creation of new human rights but the recognition of the importance of the Internet in the enjoyment of those existing rights such as privacy and freedom of expression. It encapsulates the spirit of Resolution A/HRC/20/L.13 of the UN Human Rights Council of June 2012, also signed by Malta.

This Resolution provides that the exercise of human rights on the Internet is an issue of increasing importance as the rapid pace of technological development enables individuals all over the world to use ICTs. Whilst affirming that “the same rights that people have offline must also be protected online”, the UN called upon all States to “promote and facilitate access to the Internet” and to introduce special procedures to take these issues into account. Finally it decided to continue considering the promotion, protection and enjoyment of human rights on the Internet and in other technologies, as well as of “how the Internet can be an important tool for the development and for exercising human rights”.

The importance of this discussion and its prioritisation not only arises from the work of the UN or the mass protests against perceived fears that ACTA would have impinged on our Internet freedoms but can also be seen within the Brazilian Marco Civil da Internet (Bill on Internet Civil Rights) on which the Brazilian parliament will vote this month. This initiative, referred to as a leap in the country’s progressive digital policymaking agenda, clearly reflects Vint Cerf’s analysis that the Internet should not be seen as a fundamental human right but as a tool for the enjoyment of such rights, more akin to a civil right. It is in this spirit that the White Paper is suggesting the recognition as well as the promotion and protection of the Internet as a tool for the enjoyment of human rights.

Through the introduction of such guiding principles, Malta has the opportunity not only to reflect the spirit of the UN’s Resolution but also to underline its commitment towards existing human rights whether arising directly from the Constitution or other international conventions such as the European Convention of Human Rights which is directly enforceable in Malta.

Jurisprudence of the European Court of Human Rights throughout the past years has considered the applicability of the right to private and family life and freedom of expression in respect to acts carried out online. Most importantly, it stressed on the creation of positive/negative obligations on the State in order to ensure that the provisions of these rights are also protected and promoted online. The proposed principles should serve as a crystallization of those negative/positive obligations.

The action-ability of the principles proposed does and should not arise from the principles themselves but from (i) the applicability of those principles in existing and future laws including the negative/positive obligations of the State to promote and protect them and (ii) from the clear recognition that our human rights also exist online and are actionable in their own right. Rights are not only actionable if contained in the Constitution or ECHR but also by means of ordinary legislation putting those rights into substantive action. Arguably, the basis of the White Paper is to introduce guiding principles to which ordinary laws affecting the Internet should aim.

Whilst Chapter II of the Constitution is not enforceable in court, Article 21 adds that “the principles therein contained are nevertheless fundamental to the governance of the country and it shall be the aim of the State to apply these principles in making laws”. Whether any government would decide to ignore the provisions of Chapter II remains to be seen especially if such ‘digital rights’ are introduced. The ACTA protests have been a clear sign that the people do not want anyone to mess with ‘their’ Internet.

The White Paper provides an indicative list of the negative/positive obligations resulting from the recognition of these principles. One finds that the “State should ensure that no laws, especially intellectual property laws, permit users to be disconnected from the Internet through the adoption of any three-strike or graduated response mechanism.” Considering that many other countries are rushing towards the implementation of such measures, the fact that Malta is proposing a prohibition on their introduction as a result of the negative obligations introduced by the digital principles is indeed laudable irrespective of whether such principle will actually be included in Chapter II of the Constitution or any other place such as an Internet Freedom Act.

The discussion should not only focus on the recognition of the Internet as an important tool for the enjoyment of our fundamental human rights but also, as suggested, as an opportunity to re-address the importance of fundamental human rights themselves, potentially including a right for the unhindered development of personality. This however should not mean that the recognition of the tool is wrong.