No. However, it may be a recognised right intended to protect our fundamental rights: and that’s a close second.
Having internet access elevated to a civil right in our law could go some way in legislatively recognising the internet as a right- Jeanette Ciantar
While it is not quite correct to say that internet use is a fundamental right (or at least not for the time being), internet use – and by corollary, any rule restricting that use – has to respect our fundamental rights as enshrined in our Constitution and in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). As Vint Cerf, co-creator of the TCP/IP standard the global computer network is built on, put it, internet access itself is not a right, but just a “technological tool that enables us to exercise other fundamental rights”.
Amidst the current discussions, debates and protests over the ratification of ACTA, and following the Prime Minister’s recent announcement to enshrine internet freedom as a civil right, it might be worth the effort to re-assess the local – and European – position on the relationship between internet freedom and respect to fundamental rights.
The need to legally recognise internet freedom at EU level had first emerged during the discussions over the adoption of the Telecom Package back in 2009. In those discussions, the so-called “138 Amendment” or “internet freedom provision” had formed the subject of much political debate. The Telecom Package attempted to make provision for the introduction of laws allowing for internet disconnection where a person infringes copyright laws. In the negotiations leading to the adoption of the Telecom Package, the European Parliament had made clear that it would fail to approve the package unless judicial oversight of any internet disconnections targeting online copyright infringers was put into place.
The result of this negotiation was the 138 Amendment. With this amendment, the law still allows for internet disconnections or graduated response laws, but any such sanctions may only be imposed if they are “appropriate, proportionate and necessary within a democratic society”. In addition, any such measures can 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 – including the right to be heard – must be guaranteed as must be the right to effective and timely judicial review. The legal instrument used for the insertion of the 138 Amendment was a directive which, in terms of EU law, is binding only as to the end to be achieved while leaving some choice as to form and method open to the member states. The 138 Amendment would therefore be binding on Malta. However, since a directive only imposes an obligation of result, it must be transposed into national law by the member states in order for it to be invoked by individuals.
Generally, a directive is transposed by introducing into national law an instrument that implements the directive. The Telecom Package was largely transposed into Maltese law into the Electronic Communications Act, however the 138 Amendment was not specifically inserted into this act. So does this mean that our internet use may be disconnected at the whim and mercy of the state? No.
While directives must be transposed into national law by the member states, if national law, as it stands, already achieves the result intended by the directive, then the member states’ obligation insofar as the transposition of the directive is concerned would be fulfilled, and no ulterior national instrument would be required.
Through Malta’s ratification of the ECHR in August 1987, Malta has, as from that date, been bound to ensure that any measures taken by it, respect the fundamental rights and freedoms guaranteed by the ECHR. Moreover, any restriction of these rights must, in principle, be done in accordance with the limitations set out in the ECHR. Therefore, despite the absence of the 138 Amendment in the Electronic Communications Act, it is arguable that any measures taken by the state intended to curtail internet use in Malta, must be safeguarded by the rights enunciated in our Constitution and in the ECHR, including the right to privacy and the right to a fair trial. However, whether we can extend this concept to say that, as a corollary, we also have a right – be it civil, fundamental or otherwise – to use the internet, might not be so obvious.
The 138 Amendment does pave the way towards the recognition that internet access has to respect our human rights and fundamental freedoms but it does not establish concretely internet use as a right. In addition, the 138 Amendment is clear but it is not widely known and hardly ever invoked before our courts, thereby diminishing its effect in practical terms.
Having internet access elevated to a civil right in our law could go some way in legislatively recognising the internet as a right through which one could not only safeguard his human rights and fundamental freedoms (a matter already recognised by the 138 Amendment), but a right through which one could also actually enjoy, his fundamental freedoms. The difference might not be so obvious but in actual fact a positive legal safeguard is inserted. We would move from a situation where “measures” taken to curtail the use of the internet need to be in line with our rights and fundamental freedoms, to a situation where the “use” itself is a right and one through which you can exercise your rights and fundamental freedoms such as the right to express oneself or receive information.
While, of course, one would need to assess any conclusions reached in light of a draft legal text, having internet freedom inserted as a civil right in our law, would not only imply the effective concretisation of a process already initiated through the 138 Amendment, but, also, the elevation of that process into positive law, thus in practice transforming an unknown reality into a well-established and enforceable right.
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(This article is not intended to offer professional advice and one should not act upon the matters referred to in it without seeking specific advice.)
Dr Ciantar is an associate within the EU & Regulatory Department at Fenech & Fenech Advocates.