Internet (access) as a new fundamental right. Inflating the current rights framework?

Paul De Hert, Dariusz Kloza

Abstract


The debate on the possible recognition of the use of the Internet as a human right matures. This paper, first, overviews arguments in favour and against the recognition of such a right. It then analyses how existing human rights, in particular the freedom of expression, function as legal tools to shield the content and connectivity of the Internet against unlawful interference. Next it turns to the doctrine of positive state obligations and the doctrine of human rights as living instruments. Both can be invoked to make existing rights protect content and to ensure connectivity. The example of the European Union’s Universal Service Directive illustrates the importance of legal sources other than those taken from the fundamental rights category. This paper concludes that before a new right to the use of the Internet is recognised, one should take into account what is already protected and how. Still, one might argue that more is needed in human rights law than what currently exists.

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