In first place, we are to distinguish between "Fundamental Rights"
, on the one hand, and "Human Rights"
on the other one. It will also include a contrast between the reasons both in favor and against the idea of considering the access to the Internet as a "Fundamental Right".
To this end, we start from the concepts developed by Luigi Ferrajoli
, which conceptualizes that "Human Rights" are those granted to all, regardless of their citizenship and their capacity to act; and those inherent in the human condition. Usually provided for international instruments. While “the Fundamental or Constitutional Rights” as recognized by the State Constitution.
That is, the "Fundamental Rights" are those recognized in national constitutions of the respective States, human rights are positivized in a legal order in particular.
Having made a reference for both concepts, we focus now on "fundamental rights", for which we find expressions in favor of considering Internet access as such. These include the Universal Declaration of Human Rights, although we find no explicit reference about this right, we must take into account the time of writing, 1948, when there was no Internet yet. However, in the Declaration are enshrined fundamental rights (freedom of thought, freedom of opinion and expression, right to education) that can serve as arguments in favor of recognizing the Internet access as a Fundamental Right.
On the contrary, there are texts that are being negotiated privately between countries as ACTA (Anti-Counterfeiting Trade Agreement), changing global map of intellectual property, are elevating in events contrary to the basic principles governing the Internet: openness and access. Especially when it includes the 3 Strikes rule.
Beneficially, associations as APC and their Letter Internet Rights, believe that the Internet can only become a tool of empowerment of all people, if it recognizes a number of rights, including Internet Access for everyone. They also believe that ensuring that Internet access is necessary for the realization of the rights enshrined in the UDHR.
We should also note that, the Economically less developed States, in order to consider Internet access as a fundamental right , they will find a huge drawback. Many of them, are not financially able to do so, especially with the changes to be made in the layer of the Internet infrastructure, and the State is responsible for these costs, thus becoming a vacuous right .
Although there were international experiences as #InternetNecesario (Necessary Internet) in Mexico, where the community was able to demonstrate to legislators, with solid arguments why Internet access is necessary for all citizens . Achieving lower the percentage of tax levy that would apply to telecommunications (including internet). This confirms that, people are enlist among the considerations in favor of access as a fundamental right.
Finally, we find explicit references as in Finland, to consecrate the Internet access Broadband as a Fundamental Right, from July 2010 there will be 1 Mb / s access, guaranteed to all citizens. It is the first country to approve such a measure. This does not mean that access will be free, but it must be possible.
Certainly, we believe that Internet access is necessary for the exercise of other fundamental rights and freedoms associated such as freedom of expression, freedom of association, freedom of access to information, the right to non-discrimination, and the stability of constitutional democracies. Whether to exercise these rights, we need access to the Internet, wich also becomes a right. Therefore, access to the Internet should be considered as a fundamental right.
Not only they owe us ensure accessibility to the Internet as citizens, but also the Openness and Democratization of access and bandwidth for all, since one of the most important elements of Internet, is collaboration. This way, not only succeed in reducing the digital gap, but also in adding value to the available contents.
FERRAJOLI, Luigi, “Derechos fundamentales” en Derechos y garantías. La ley del más débil, Trotta,