Liberté, egalité, internet – Tommaso Edoardo Frosini

This post was originally published as the editorial to issue 1/2014 of the journal Percorsi Costituzionali devoted to freedom in internet

1. Anti-liberalism in the Twenty First Century is measured on the internet. In fact, the internet has become the place where intolerance comes to the fore, where censorship is exercised and where online dissent is muzzled. Recent events in Turkey, where Prime Minister Erdogan outlawed access to social networks (twitter and youtube), are emblematic of just how allergic certain countries are towards the web. Virtual walls are erected in place of stone walls: some countries have put up electronic barriers in order to block access to part of the global internet, and have done so by cancelling keywords, names and phrases from search engines, or by violating the privacy of their citizens. A new “e-iron curtain” is descending across part of the world, with videos and blogs representing the modern-day samizdats. However, this confirms the liberal vocation of the internet, and the fear of this global freedom by technology-averse countries, which experience it as a threat to their absolute power.

The enemies of the internet are scattered throughout the world. Moreover, they do not include solely authoritarian and anti-democratic states. The Open net initiative, a university consortium, has estimated that at least 74 countries censor their own citizens. Numerous censorship techniques are used, which are referred to collectively as the Peking Consensus: a mixture of surveillance and repressive technologies, which often turn into formidable instruments for muzzling protest. The most widespread techniques are based on internet filters, “IP blocking” and “DNS poisoning”. It is possible to draw up a map of online censorship around the globe, which draws no distinction between stable democracies and new totalitarian regimes. Some states shut down news sites and even arrest people for “digital crimes” (e.g. Bangladesh), others maintain a constantly updated blacklist of sites that need to be blocked (Belarus), whilst others still remove all references to situations of political instability from search engines (China). However, even in countries such as France and Germany, web content relating to Nazism and the Holocaust is censored; in 2013 the French authorities ordered Twitter to remote anti-Semitic content, following which certain content that was sexist or homophobic or discriminated against the disabled was blocked pursuant to Article 17 of the French Law on Gender Equality. In addition, under a Law enacted in February 2014, the Turkish Government requires internet service providers to act as surveillance agents and censors by implementing selective removals and blocks of undesired online content and by collating all user data, including even their email addresses, with revocation of the licence as the penalty for non-compliance.

And the list could go on…

2. Another issue which needs to be highlighted concerns access to the internet, which we have defined elsewhere as a “fundamental right” [T.E. Frosini, The internet access as fundamental right, in Italian Journal of Public Law (www.ijpl.eu), n. 2, 2013]. The right of access is comprised of two different but related elements: a) the right of access to content, which is hence a necessary instrument for exercising freedom of expression. If this “online freedom” as it were is exercised if and when a person accesses the internet, then access is not only an indispensable instrument but becomes an essential moment in the exercise of the freedom, without which it would be distorted and cancelled. Translated into a constitutional rule, this is reflected in Article 21 of the Italian Constitution and its structural development into a guarantee of free access by all persons to free speech platforms, which nowadays means above all the internet; b) the second issue on the other hand concerns the right of access to the internet as a social right, or rather an individual claim to public services, in the same manner as education, health and social security. It is a universal service which the national institutions must guarantee to their citizens through state investments, social and educational policy and public spending choices. In fact, access to the internet and online activities are increasingly the means by which the individual interacts with public authorities, and hence exercises his or her citizenship rights. Today citizenship is digital.

With specific reference to Italy, it may be useful to cite several empirical figures in relation to the problem of access to the internet. According to the most recent “Eurostat” investigations in fact, more than one third of Italians has never used the internet: 34% of the population has never surfed the web. This figure puts Italy at the bottom of the European league table, slightly above Greece (with 36%) and Bulgaria (with 41%). By contrast, an EU average of 79% of families has access to the internet. Again in relation to Italy, as regards the relationship between e-government and private individuals, only 21% report having used digital services provided by the public administration, compared to a European average of 41%. Italy does not fare much better in terms of broadband speed, another variable for which we have the worst figures in Europe. According to the findings of the Akamai State of the Internet Report, in the third quarter of 2013 the average speed for Italy was 4.9 Mbps (megabits per second): the Netherlands, Switzerland and the Czech Republic dominate the table with speeds in excess of 11 Mpbs. Only Turkey has slower speeds than Italy, with 4 Mbps.

3. One last consideration should be made in conclusion. The legal horizon of the internet is particularly prominent in the Twenty First Century. The internet also represents the new horizon for European constitutionalism, as is clear from the judgments of the US Supreme Court and the French Conseil Constitutionnel. It is significant that, precisely in those two countries in which constitutionalism arose, notwithstanding initial moves in opposite directions, a new interpretative method has been established based on the re-reading and application of two long-standing rules – the First Amendment of the US Constitution and Article 11 of the 1789 Declaration – which were conceived, written and approved more than two centuries ago in order to assert and protect freedom of information in the past, present and future. In fact, it is these rules, these clear and lucid reference points of constitutionalism, which paved the way for modernity and which are now being used in the search for the constitutional cornerstone that can recognise and guarantee new forms of expression through electronic communication, with particular reference to the internet. Thanks to shrewd constitutional interpretation, a constitutional right of access to the internet is being developed within the case law, because against the backdrop of the general dissemination of the internet, freedom of communication and expression is necessarily premised on the freedom of access to those online communications services. The task of the state is to remove the obstacles that de facto prevent the usage of this universal service by all citizens, which must by contrast be guaranteed through state investment, social and educational policies and public spending choices.

Freedom of expression under constitutional law nowadays consists in what Article 19 of the UN Universal Declaration of Human Rights has clearly identified as: “to seek, receive and impart information and ideas through any media and regardless of frontiers” even when – as occurred in the recent “WikiLeaks” affair – the information conveyed online is a source of concern for national governments, and is liable to disrupt diplomatic relations between states and to reveal the arcana imperii. Whilst it may not be welcome, and above all whilst its scope may be limited and legal validity denied, the fact remains that even this task of “seeking, receiving and imparting” information ends up focusing on the right to know and freedom of information, which also represents a new manifestation of the separation of powers, against the backdrop of a renewed conception of constitutionalism. It used to be governments that controlled citizens by controlling information, but now it has become more difficult to control what people read, see and hear, and what they seek, receive and impart.

This is why it is necessary to fight for online rights and freedoms.

And this is why today’s motto and mission is: Liberté, Egalité, Internet

Tommaso Edoardo Frosini
Chaired professor of Comparative Public Law at the University of Naples, Suor Orsola Benincasa, and co-editor of the journal Percorsi Costituzionali

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