By Martin van Staden

Since the inception of the ‘#DataMustFall’ movement in 2016, the notion that Internet access is a human right that must be guaranteed by government has become an attractive narrative for many commentators.

Indeed, there has been much talk of a ‘digital divide’, meaning the inequality of access to digital media between wealthier and poorer individuals. #DataMustFall has recently been joined by the official opposition’s (the Democratic Alliance’s) #Data4All initiative, which is demanding 500MB of free data for the poor, students and jobseekers.

Passion and emotion are crucial ingredients in a democracy, antithetical to the cold application of rules evident in authoritarian dictatorships. However, it remains important to approach ideas like Internet access being a human right with a degree of circumspection, especially if such narrative stands to cost the beleaguered taxpayer more in taxes, and when it appears to be so readily accepted, without question, that it should be a human right.

A liberty right versus an entitlement right

Insofar as the liberty of the individual relates, Internet access is certainly a human right.

During the Arab Spring of 2010 to 2012, the Egyptian government cut Internet access to the people to protect itself from being ousted. Turkey’s government has taken similar measures to silence the opposition and the press. In September 2017, Togo also cut Internet access to anti-government dissidents.

In South Africa (SA), s 16(1)(a) of the Constitution provides that everyone has freedom of expression, including freedom of the press and other media, and s 16(1)(b) provides that everyone has the right to receive and impart information or ideas. This, read with s 25(1), which provides that everyone has the right to own private property and not to be arbitrarily deprived of it, certainly means that every South African may have an Internet connection without fear of government interference.

This, however, is not what most advocates of Internet access as a human right mean. To them, it is an entitlement right, meaning that Internet access must be provided (at taxpayers’ expense), not merely allowed.

The Constitution

The pertinent question is whether the Constitution provides for an entitlement right to Internet access in the same way it does a liberty right.

At the outset, it is important to bear in mind the constitutional principle enunciated by Sir Kentridge AJ in S v Zuma and Others 1995 (2) SA 642 (CC) ‘that the Constitution does not mean whatever we might wish it to mean’. Referring to the late Privy Council Judge Lord Wilberforce’s ‘reminder that even a constitution is a legal instrument, the language of which must be respected’. Kentridge continues and states that the language used by the constitutional drafters must not be ‘ignored in favour of a general resort to “values”’, as then ‘the result is not interpretation but divination’.

Section 7 of the Constitution provides that government must ‘respect, protect, promote and fulfil the rights in the Bill of Rights’. The wording used here is particularly important. Government must give effect to and promote only those rights that are in the Bill of Rights – no more, and no less. Government cannot create new fundamental (human, constitutional) rights from scratch without amending the Constitution, whereas it may create statutory rights, such as our right to possess firearms under the Firearms Control Act 60 of 2000.

There is no explicit right to Internet access in the Constitution. Section 32’s right to access to information does not equate to a right to Internet access as it is explicit about its limitation. Everyone has the right to have access to information held by the state and access to information held by any other person if it is required to enforce one’s rights. This relates clearly to specific information and cannot be read to mean that the data held by data service providers is necessary for people to exercise their right to dignity or freedom of expression.

International treaty law, which has become more prolific over the past two decades on this very topic, could tell a different story.

Section 39(1)(b) of the Constitution obliges South African courts to consider international law in their interpretation of the Bill of Rights, meaning that international treaty law might compel SA to give effect to a human right to Internet access. This does not mean that the Bill of Rights itself may be substituted for what an international treaty provides. Instead, if there is doubt or uncertainty as to what a particular section in the Bill of Rights means, or how it should be applied to a particular situation, the courts must venture an interpretation that accords with existing international law.

Section 231(4) of the Constitution provides that international law becomes a part of South African law if Parliament enacts it into our law as legislation. That rule of international law must, however, be consistent with the Constitution and existing statutory law, otherwise Parliament cannot enact it as legislation. This is evident from ss 1(c) and 2 of the Constitution, which provides for the supremacy of the Constitution and the rule of law.

This principle is contentious considering the principle that domestic law cannot overrule international law. In practice, the courts and government will rarely, if ever, find South African constitutional principles to be inapplicable due to some conflicting international rule. It must be assumed that the Constitution will reign supreme in every instance when considering international law.

Section 232 of the Constitution, further, provides that customary international law is automatically part of South African law unless it is inconsistent with the Constitution or statutory law. Customary international law consists of principles generally accepted by the international community as law, but which are not necessarily found in treaties. There is, however, no discernible human right to Internet access to be found in customary international law.

Section 233 provides that courts ‘must prefer any reasonable interpretation’ of South African legislation, which is consistent with international law, over an interpretation that is inconsistent with international law.

International law

The #Data4All initiative claims that the United Nations (UN) considers Internet access a human right. This refers to a non-binding resolution adopted on 27 June 2016 by the UN Human Rights Council (UNHRC) that, inter alia, affirms that the rights, which people have
offline, must also be protected online, especially freedom of expression, and calls on governments to bridge digital divides (UNHRC ‘The promotion, protection and enjoyment of human rights on the Internet’ A/HRC/32/L.20 (27 June 2016) (www.article19.org, accessed 14-2-2018)).

A Declaration of Principles was also adopted by the World Summit on the Information Society in 2003 in consultation with the UN, national governments and other stakeholders in the information and communication technology (ICT) industry. It contains various principles relevant to the question of Internet access as a human right.

Principle 4 provides that communication is ‘a basic human need’ and ‘central to the Information Society’. Everyone should have the opportunity to participate in the Information Society. This principle accords perfectly with the Constitution and the notion that the right to Internet access means that people should not be hindered from accessing the Internet, rather than a right to have the Internet provided to them.

Principle 23 provides that certain policies should be developed, which ‘enables universal service obligations’ to ‘areas where traditional market conditions fail’. It goes on to name examples of government providing access points in post offices, schools and libraries.

This principle, like the UNHRC’s call for governments to bridge digital divides, does not find expression in the Constitution. Indeed, s 9(2) of the Constitution, which provides for substantive and not merely formal equality of persons, echoes s 7 in that it provides that equality ‘includes the full and equal enjoyment of all rights and freedoms’. It must be assumed that these ‘rights and freedoms’ are those already found in the Bill of Rights. Thus, for example, whereas government has a constitutional obligation to ensure the educational divide between rich and poor is bridged, the same cannot be said for the digital divide.

Principle 39 of the Declaration provides that the rule of law, ‘accompanied by a supportive, transparent, pro-competitive, technologically neutral and predictable policy and regulatory framework reflecting national realities, is essential for building a people-
centred Information Society’. This principle endorses a sound notion of the rule of law, that is, policy must be predictable, transparent, and pro-competition. Government intervention to provide Internet access must thus be supported by these characteristics.

The Department of Telecommunications and Postal Services’ ICT policy, however, is not so supported. It is, firstly, assuredly anti-competitive by venturing to establish a new telecommunications monopoly. Secondly, it seeks to hog radio frequency spectrum desperately needed by data providers. And, thirdly, the process of its adoption was anything but transparent, with bad faith public participation in the formulation of the White Paper and a socio-economic impact assessment released hopelessly late, after the minister had already declared the policy as ‘final’.

The true nature of human rights

It is prudent to ask whether, despite any domestic or international law providing that Internet access is a human right, it is truly in the nature of human rights to be capable of ‘creation’? Put differently, do human rights pre-exist law and accrue to all human beings by virtue of our humanity, or do popular assemblies and governments ‘make’ human rights? This is yet another incarnation of the age-old debate between natural law and positivism.

For a human right to be of a ‘human’ nature, it must satisfy the requirement of universality. Indeed, a human right means that something belongs to all humans regardless of who, where or even when they are. Being human is not temporally limited, meaning that these types of rights have existed for as long as human beings have existed, regardless of the fact that we only recently developed a conception of human rights.

By this logic, I submit that Internet access cannot be a human right.

The Internet is a relatively recent invention, which the humans of ancient Rome or Great Zimbabwe could not have enjoyed a right to, despite the fact that they were humans. The notion that things can ‘become’ human rights is problematic in that it violates the very essence of the concept of fundamental rights, namely, inalienability and universality. If something can ‘become’ a right, it can naturally stop being a right, which is a can of worms that only dictators and tyrants would wish to open.

Conclusion

Vint Cerf, considered to be one of the pioneers of the Internet, said that ‘technology is an enabler of rights, not a right itself’ (www.nytimes.com, accessed 29-1-2018). When we wish to exercise our right to freedom of expression, we do not think that government must – at taxpayers’ expense – provide us with a podium and an audience. When we think about our right to privacy, we do not think government must provide us with tinted windows or locks for our gates. Instead, we have the right to these things but exercising those rights remains our own, personal responsibility.

To conceive of all ‘good’ or ‘important’ things as human rights, as Dr Nigel Ashford astutely writes, ‘reduces the moral force of the claim’ (N Ashford ‘Human Rights: What they are and what they are not’ Political Notes No. 100 (London: Libertarian Alliance 1995) (www.libertarian.co.uk, accessed 29-1-2018)). When we speak of human rights, we must be referring to a set of rights, which human beings are entitled to only by virtue of our existence as human beings. Internet access is assuredly thus not a human right. It can, however, be made into a constitutional or statutory right, of which it is currently neither.

Making a statutory right of Internet access should only be pursued after an extensive good faith public participation process and an independently conducted socio-economic impact assessment to ask the most important question of all: Can the cash-strapped South African taxpayer afford to pay for everyone’s Internet access? Unless serious economic growth and employment sets in soon, the answer must be an unequivocal ‘no’.

Martin van Staden LLB (UP) is a legal researcher at the Free Market Foundation in Johannesburg.

This article was first published in De Rebus in 2018 (March) DR 32.