A/HRC/17/27
survey by the British Broadcasting Corporation in March 2010, 79% of those interviewed
in 26 countries believe that Internet access is a fundamental human right.55
66.
Given that access to basic commodities such as electricity remains difficult in many
developing States, the Special Rapporteur is acutely aware that universal access to the
Internet for all individuals worldwide cannot be achieved instantly. However, the Special
Rapporteur reminds all States of their positive obligation to promote or to facilitate the
enjoyment of the right to freedom of expression and the means necessary to exercise this
right, including the Internet. Hence, States should adopt effective and concrete policies and
strategies – developed in consultation with individuals from all segments of society,
including the private sector as well as relevant Government ministries – to make the
Internet widely available, accessible and affordable to all.
VI.
Conclusions and recommendations
67.
Unlike any other medium, the Internet enables individuals to seek, receive and
impart information and ideas of all kinds instantaneously and inexpensively across
national borders. By vastly expanding the capacity of individuals to enjoy their right
to freedom of opinion and expression, which is an “enabler” of other human rights,
the Internet boosts economic, social and political development, and contributes to the
progress of humankind as a whole. In this regard, the Special Rapporteur encourages
other Special Procedures mandate holders to engage on the issue of the Internet with
respect to their particular mandates.
68.
The Special Rapporteur emphasizes that there should be as little restriction as
possible to the flow of information via the Internet, except in few, exceptional, and
limited circumstances prescribed by international human rights law. He also stresses
that the full guarantee of the right to freedom of expression must be the norm, and
any limitation considered as an exception, and that this principle should never be
reversed. Against this backdrop, the Special Rapporteur recommends the steps set out
below.
A.
Restriction of content on the Internet
69.
The Special Rapporteur is cognizant of the fact that, like all technological
inventions, the Internet can be misused to cause harm to others. As with offline
content, when a restriction is imposed as an exceptional measure on online content, it
must pass a three-part, cumulative test: (1) it must be provided by law, which is clear
and accessible to everyone (principles of predictability and transparency); (2) it must
pursue one of the purposes set out in article 19, paragraph 3, of the International
Covenant on Civil and Political Rights , namely: (i) to protect the rights or reputations
of others; (ii) to protect national security or public order, or public health or morals
(principle of legitimacy); and (3) it must be proven as necessary and the least
restrictive means required to achieve the purported aim (principles of necessity and
proportionality). In addition, any legislation restricting the right to freedom of
expression must be applied by a body which is independent of any political,
commercial, or other unwarranted influences in a manner that is neither arbitrary
nor discriminatory. There should also be adequate safeguards against abuse,
including the possibility of challenge and remedy against its abusive application.
55
“Four in five regard Internet access as a fundamental right: global poll,” BBC News, 8 March 2010.
Available from: http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/08_03_10_BBC_internet_poll.pdf.
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