Scripta Varia

The Legal and the Social Perspective

Giusella Finocchiaro
President, Fondazione del Monte, Italy

Thank you very much, I have benefited very much from the discussion so far, and I have completely changed my talk. I have rewritten it during the day so you will excuse me if it will not be a very formal talk.

I tried to bring my experience as a law professor and I hope this might help, and the question I’m coming from is: what is the aim of affirming connectivity as a human right? What is the aim? It is not a very simple question and there are at least two dimensions in order to answer this question, a legal one and a political one.

The legal point of view can be summarised in three positions. The first one, the formal thesis, which was mentioned by Professor Prodi at the beginning of this morning, is the following: connectivity is not a human right, it is an enabler of rights, it is not a right in itself. This is a very strong position, it has been affirmed many times by many important authors and it’s difficult to reply to this position. It is true that a technology is an enabler of rights, internet is a tool for obtaining something else more important. One may also say – and it has been said – that human rights are instrumentally necessary things for membership in a political community, and that although internet access is instrumentally valuable for membership, it should not be seen as a human right in itself, because it is not necessary for membership.

Another position is to see the rule as a programmatic rule, more or less. The State should promote access to the internet, and this is quite a common position, we can read it in many national legislation and some UN Resolutions. And then there is the more substantial position, very close to the European one mentioned this morning by Roberto Viola, a substantial rule, the recognition of a universal service and, of course, a way of funding the recognition of the access as a universal service. This more or less is the summary I can try to draw from a legal point of view.

But there is also another way to consider this topic, there is another point of view, and it is the following: what if connectivity is denied? So, the other way round, not talking about connectivity as a right, but considering the hypothesis in which connectivity is denied. Well, if connectivity is denied, then a social dimension, an economic dimension, and a human dimension are denied, so in this way, if you put the questioning, the topic in this way, connectivity is a prerequisite, a precondition, for the exercise of many rights, and there are no doubts it’s a precondition to exercise many human rights online, for instance freedom of expression, freedom of assembly, social development, the development of economic activities and so on. So, probably, what is needed is a political engagement in order to ensure the precondition.

This was done partially in 2012 and 2016 by the UN Human Rights Council. In 2012 it was affirmed that the same rights people have offline must be protected online, in particular freedom of expression, that the global and open nature of the internet is a driving force in accelerating progress, and the UN called upon all States to promote and facilitate access to the internet and facilitate international cooperation.

In 2016 the UN also affirmed the importance of applying a comprehensive human rights-based approach in providing and expanding access to the internet to bridge the gender digital divide to take appropriate measures for design, development, production, distribution of information communication technologies and systems, so with a focus also on digital divide.

So going back to the question I posed at the beginning, what is the aim of affirming connectivity as a human right, well I think that the answer is to remove substantial obstacles. Law can play a role in removing obstacles, affirming a rule can be useful in order to remove substantial obstacles. This is a role legislation has played in many, many, cases. Of course, economic investments are needed, education is needed but probably, from my point of view, the best role law can play is the removal of some obstacles.

But these is also another side of the coin: where there are rights, there are also duties, and of course in many resolutions, resolutions I mentioned before, the UN condemns human rights violations and abuses and measures to prevent access of information online, combats violence and so on.

            In conclusion, it can be affirmed that the same rights people have offline must also be protected online but it must also be affirmed that the same duties must be performed online as well.

            Thank you very much.

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