The study “Internet, a fundamental right” has been published

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The Taula d’Entitats del Tercer Sector Social de Catalunya (the institution representing all Catalan social organisations) has published the study “Internet, fundamental right: proposals to reduce the digital and social divide” (in Catalan “Internet, dret fonamental: propostes per reduir la bretxa digital i social“) which was jointly written by the Observatori DESCandfemProcomuns. The study was presented last September 29th in a conference at Casa Macaya (Barcelona). The report analyses the existing legal framework (both in the Catalan and Spanish sphere and in the European and international sphere); makes some considerations on the content of the right (dignified, equal and empowering access; exercise of rights and freedoms) and exposes the existing positions in relation to its recognition (as a means to exercise other rights, as an instrumental right, as a substantive right). It studies the case of Barcelona; and finally presents some conclusions and makes some recommendations for action in three axes: actions to strengthen the legal framework, public policies, actions to be undertaken from the third sector.

The first part studies the existing legal framework and includes different approaches to the right to the Internet in International Human Rights Law, jurisprudential notes and also soft law initiatives. The aim of this part of the study is to set out the state of the art regarding the recognition of the right to the Internet, on the one hand, and on the other, to find inspiring elements in order to subsequently draw up a comprehensive, informed and, as far as possible, legally based advocacy strategy to guarantee the right to the Internet in Catalonia. With regard to the international and regional sphere, it reviews the United Nations, the European Union and the Council of Europe domains. This section also includes some international examples of recognition of the right to the Internet to be considered to implement in our legal framework, specifically mentions the cases of Estonia, France, Finland, Italy, Chile, India and Brazil. It also reviews the existing regulations in Spain and Catalonia and the possibilities for advancing in the recognition and exercise of the right.

The second part of the study reflects on the content of the right to the Internet. In order to recognise the right to the Internet as a fundamental right, it is necessary to identify the main aspects that need to be protected. For this reason, this second part of the study sets out the different areas of the right, and raises three possibilities in relation to its recognition:

• For the right to the Internet to qualify and extend the content of other human rights already recognised, without constituting a human right in itself.
• For the right to the Internet to be an instrumental right, that is, a right without which access to other already recognised human rights is not possible.
• That the Internet constitutes a substantive fundamental human right, with the consequent guarantees and forms of enforce-ability.

The third part describes the initiatives that have been taken in Barcelona as a case study, both at the institutional level and from the citizenry, as well as the opportunities and shortcomings for the exercise of the right to the internet in the city and the impact of the internet on the exercise of other rights.

To write the report, the study of existing legislation and bibliography was combined with the following group and personal interviews:

• Group discussion with individuals strongly related to social organisations: Silvano Aversano, Ángel Calle, Aurelio Gómez, Mireia Milliano
• Group discussion with jurists: David Bondia, Tamara Álvarez, Agustí Cerrillo, Josep Jover, Lidón Gasull.
• Group discussion with digital rights activists: Clara Cusó, Ramon Roca, Roger Baig, Dario Castañé.
• Personal interviews with: Ángel Calle, Silvano Aversano, Muriel Rovira, Ricard Faura i Homedes, Lluís Torrens Mèlich, Meritxell Benedí Altés, Michael Donaldson.

The conclusions -based on the observation that the level of vulnerability that can be caused by the lack of guarantee of certain rights due to not having a device, a connection or the capacity to exercise a range of rights that are impossible to measure, and which are currently articulated through the network-, take us to consider the Internet as a new fundamental right (the option chosen by the Bureau) and leaves open the debate whether it should be considered instrumental or substantive. It is also concluded that the difficulty this recognition may entail means for political advocacy to achieve it to be parallel to ensuring the existing legal framework includes measures that generate obligations for public administrations and companies to allow the right to be exercised. In this sense, the role civil society can play in order not to leave the guarantee of the right exclusively in the hands of the State, the companies and the market is emphasised, ensuring the social perspective of its protection. On the other hand, it is indicated that the right of use can never become an obligation of use. Under no circumstances can discrimination in the exercise of rights and freedoms be created by not having or not wanting to have access to the Internet.

These conclusions come with a series of recommendations for action:

• For the Taula del Tercer Sector itself, because it is an actor of political advocacy and legislative actions, an observatory of the advances and setbacks in the recognition of the right, a bridge actor between the social sector and digital rights initiatives, a promoter of digital empowerment, the use of free and technoethical technologies, a compiler of good practices, an instrument for pooling legal advice and training, an agent of advocacy with telecom operators and a facilitator of the development of community networks.
• For the Taula and third sector organisations on three axes:
  • Actions to strengthen the legal framework: actions at the international level in the UN Committees, by means of individual complaints and civil society reports, with the UN Special Rapporteurs providing cases and inviting the Rapporteur to appear before the Parliament of Catalonia; at the European level, with the filing of lawsuits in the European Court of Human Rights; at the Spanish level by promoting recognition in the Constitution, with the normative development of existing laws that imply partial recognition (Organic Law 3/2018, Preliminary Draft Telecommunications Bill); at the Catalan level by exploring the possibilities of the legal and regulatory framework (articles 52 and 104. 7 of the Catalan Estatut, Consumer Code 22/2015, law 24/2015, Catalan Charter of Digital Rights); and finally with the promotion of legal actions for non-compliance that can create jurisprudence or with complaints to the Catalan Síndic de Greuges and the Spanish Defensor del Pueblo (in English, Ombudsman).
  • Actions related to public policies: taking advantage of the European initiative wifi4EU, promoting digital empowerment, moving from a privative model to a commons model in infrastructures (with some references promoted by Guifi.net such as the GRETA network in the Ebro Lands), influencing the drafting of the Spanish Charter of Digital Rights.
  • Actions related to the activity of the third social sector: for organisations to influence digital training with actions of identification and diagnosis, definition of what this training should be like and what it should include, compilation and elaboration of materials and promotion of free and ethical technologies; making language not a barrier by facilitating the translation of software and free linguistic technologies both in Catalan and in the languages of migrants attended by social organisations; promoting the reuse of devices and their shared use, ensuring the creation of citizen networks and the protection of nature.
• For public institutions: reforming the Constitution to recognise and guarantee the right to the internet; carrying out the regulatory development of Organic Law 3/2018 to guarantee the universal right of access and the right to digital education and promoting the Access Plan recognised in this law to overcome the digital divide; incorporating universal service into the Preliminary Draft Telecommunications Bill; taking into account the social needs detected in the Spanish Charter of Human Rights; developing the articles of the Catalan Estatut on universal access to services; promote digital training from a qualitative and not quantitative perspective of accesses per household; request the Wifi4eu voucher by municipalities to install free wifi equipment; use the public fibre infrastructure in a shared manner between operators and in a communal manner as a commons network.