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International and Regional sources of law

The Freedom of Expression

The right to freedom of expression and to receive information are protected under international human rights law.

International Covenant on Civil and Political Rights

Article 19(2) of International Covenant on Civil and Political Rights (“ICCPR”) provides:

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The UN Human Rights Committee, which supervises and monitors the implementation of the ICCPR, expanded on the meaning of Article 19 in General Comment 34. Of relevance, it stated regarding the internet that:

States parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto (para 15).

Therefore, States should not control the internet and should take steps to ensure people have access to the internet. That does not necessarily mean that everyone has a right to free internet in their homes. They can, for example, access the internet in public libraries.

Regional Treaties

Freedom of expression is also protected in various regional treaties, such as in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 13 of the American Convention on Human Rights.

Kalda v Estonia (2016), before the European Court of Human Rights, concerned the lack of access by a prisoner to the internet. The Court confirmed that there is no positive right to internet access for prisoners under Article 10. However, it considered the matter anyway because such a right was provided for under Estonian law. Despite that Estonian law, the access of one Mr Kalda, who was serving a life sentence, to certain websites was blocked. These websites largely contained legal information, as well as information about prisoner rights. The blocking of the relevant websites was found to be unjustified, and a breach of Kalda’s right to receive information under Article 10 of the ECHR.

On issues regarding surveillance and the internet, see our earlier video.

Limitation on right to internet

The right to freedom of expression, and therefore the right to the internet, is not an absolute right. Article 19(3) of the ICCPR specifies limitations to freedom of expression.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order, or of public health or morals.

The prohibition or limitation on right to internet is justifiable, if it is provided by law to necessarily achieve a legitimate aim, as specified in Article 19(3).

Moreover, Article 20 is another limitation on the right to internet, as it demands that States prohibit war propaganda and hate speech.

On limitations to the internet, the Human Rights Committee stated in General Comment 34:

Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government. (para 43)

Therefore, any limitations to a person’s internet access have to be proportionate and tailored to the circumstances.

Domestic sources of law

At the Commonwealth level, the constitutional doctrine of implied freedom of political communication may be interpreted to protect the right to internet in some circumstances. However, analogous to international law, in Australia, this freedom of political communication can also be limited by the doctrine of legitimate burden.

In Victoria, s. 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Act) provides:

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and

Whether—

(a) Orally; or

(b) in writing; or

(c) in print; or

(d) by way of art; or

(e) in another medium chosen by him or her.

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary—

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

Accordingly, s 15(2)(e) protects the right to internet, as this section incorporates various forms of media. However, the right may be limited by proportionate measures designed to achieve a legitimate aim in s. 7 of the Charter.