{"id":598,"date":"2023-08-20T05:29:52","date_gmt":"2023-08-20T05:29:52","guid":{"rendered":"https:\/\/projects-dev.itforchange.net\/online-violence-gender-and-law-guide\/?page_id=598"},"modified":"2023-10-25T18:55:11","modified_gmt":"2023-10-25T18:55:11","slug":"5-1-right-to-access-the-internet","status":"publish","type":"page","link":"https:\/\/projects.itforchange.net\/online-violence-gender-and-law-guide\/module-5-rights-based-approach-to-online-gender-based-violence\/5-1-right-to-access-the-internet\/","title":{"rendered":"5.1 Right to Access the Internet"},"content":{"rendered":"
Navigate:Online Gender-based Violence Judicial Resource Guide<\/span><\/a><\/span><\/div><\/div><\/div><\/div><\/div><\/div>
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The internet is today a prerequisite for the exercise of a number of fundamental rights. Most importantly, the internet is one of the principal means by which individuals exercise their right to freedom of expression and freedom to receive information and ideas. Recognizing this, the United Nations (UN) Charter of Human Rights and Principles of the Internet states that everyone shall have an equal right to access and use a secure and open internet.1<\/a><\/sup>Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet<\/i>. OHCHR. https:\/\/www.ohchr.org\/sites\/default\/files\/Documents\/Issues\/Opinion\/Communications\/InternetPrinciplesAndRightsCoalition.pdf<\/a> <\/span> It also states that measures must be taken by states to ensure that the internet is accessible, available, and affordable. Moreover, the UN Human Rights Council\u2019s (HRC) Resolution on the promotion, protection, and enjoyment of human rights on the internet, adopted in July 2021, encourages states to take necessary and appropriate measures to promote free, open, interoperable, reliable, and secure access to the internet. The resolution also condemns internet shutdowns imposed intentionally and arbitrarily by governments to prevent or disrupt access to or dissemination of information online.2<\/a><\/sup>The Promotion, Protection and Enjoyment of Human Rights on the Internet: Resolution. (2021). Human Rights Council. A\/HRC\/RES\/47\/16. https:\/\/digitallibrary.un.org\/record\/3937534?ln=en<\/a> <\/span><\/p>\n

The right to access the internet is crucial for women and other gender minorities in particular, for whom such access means increased employment and career opportunities and the ability to participate in public conversations. However, several barriers make it difficult for them to realize this right. To begin with, there is the issue of availability of necessary physical infrastructure such as electricity, network connectivity, and affordable devices and data services in many places. There are also structural barriers in the form of women\u2019s (lack of) access to technology and the internet, which is heavily regulated by men in the family. In India, women are 15% less likely to own a mobile phone, and 33% less likely to use mobile internet services than men.3<\/a><\/sup>Nikore, M. (2021). India\u2019s Gendered Digital Divide: How the Absence of Digital Access is Leaving Women Behind<\/i>. ORF. https:\/\/www.orfonline.org\/expert-speak\/indias-gendered-digital-divide\/<\/a> <\/span> Research shows that mobile phones and social media are perceived as threats to a woman\u2019s reputation before marriage and a distraction from their caregiving responsibilities after marriage.4<\/a><\/sup>Barboni, G., Field, E., Pande, R., et al. (2018). A Tough Call: Understanding Barriers to and Impacts of Women\u2019s Mobile Phone Adoption in India<\/i>. Harvard Kennedy School Evidence for Policy Design. https:\/\/epod.cid.harvard.edu\/sites\/default\/files\/2018-10\/A_Tough_Call.pdf<\/a><\/span><\/span> Moreover, while an arbitrarily imposed internet shutdown affects everyone, it has a debilitating effect on women and other gender minorities as it deprives them of access to a primary source of essential information, including information about menstruation, breastfeeding and childcare, pregnancy, and abortion; robs them of career opportunities; and interferes with their efforts to empower young girls and other women.5<\/a><\/sup>Anthonio, F. (2022). Why Internet Shutdowns are Even Worse for Women<\/i>. Access Now. https:\/\/www.accessnow.org\/internet-shutdowns-international-womens-day\/<\/a> <\/span><\/p>\n<\/div>\n<\/div><\/div>

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5.1.1 Constitutional source of the right<\/h3>\n

The right to internet access has not been expressly provided by the Indian Constitution or any other legislation. However, there are two relevant case laws that discuss this right and have upheld it as a fundamental right under the Constitution. In 2019, the Kerala High Court in Faheema Shirin<\/i> v.<\/i> State of Kerala (2020)<\/i>6<\/a><\/sup>Faheema Shirin v. State of Kerala<\/i>, WP(C).No.19716 of 2019(L), judgment dated 19 September 2019, Kerala High Court.<\/span> recognized the right to access the internet as a fundamental right that forms a part of the right to privacy and the right to education, as provided for in Article 21 of the Constitution. In this case, the High Court had to adjudicate the constitutionality of the policy of a Kerala college to restrict the use of mobile phones by students living in its hostels. The court held that mobile phones and laptops are an integral part of daily life and recognized that for those who cannot afford a laptop, a mobile phone is an economically viable way to access the internet and further their education. In its judgment, the court referred to the HRC\u2019s Resolution 20\/8 of 5 July 2012, which emphasizes the importance of promoting access to the internet. It also held that depriving students of their mobile phones violated their fundamental right to privacy protected under Article 21 of the Constitution.<\/p>\n

In 2020, in Anuradha Bhasin v.<\/i> Union of India (2020)<\/i>,7<\/a><\/sup>Anuradha Bhasin v. Union of India<\/i>, WP(C).No.1031 of 2019, judgment dated 10 January 2020, Supreme Court of India. <\/span> the Supreme Court, adjudicating the constitutionality of internet shutdowns, held that the freedom of expression through the medium of the internet is protected by the Constitution under Article 19(1)(a). Therefore, any restriction on the same must adhere to the principle of proportionality and necessity, i.e., the action taken must be a proportional response to the cause that warrants it and must be necessary to achieve that cause. However, since the recognition of access to the internet as a right was not specifically argued by the parties, the Supreme Court reserved its comments on that point.<\/p>\n

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5.1.2 International sources of the right<\/h3>\n

5.1.2.1 UN resolutions<\/h4>\n
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  1. The promotion, protection, and enjoyment of human rights on the Internet: Resolution adopted by the Human Rights Council on 13 July 2021 A\/HRC\/RES\/47\/168<\/a><\/sup>The Promotion, Protection and Enjoyment of Human Rights on the Internet: Resolution. (2021). Human Rights Council. A\/HRC\/RES\/47\/16. https:\/\/digitallibrary.un.org\/record\/3937534?ln=en<\/a> <\/span><\/li>\n
  2. The promotion, protection, and enjoyment of human rights on the Internet: Resolution adopted by the Human Rights Council on 5 July 2018 A\/HRC\/RES\/38\/79<\/a><\/sup>The Promotion, Protection and Enjoyment of Human Rights on the Internet: Resolution. (2018). Human Rights Council. A\/HRC\/RES\/38\/7. https:\/\/digitallibrary.un.org\/record\/1639840?ln=en<\/a> <\/span><\/li>\n<\/ol>\n

    5.1.2.2 Declarations<\/h4>\n
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    1. Joint Declaration on Freedom of Expression and the Internet:10<\/a><\/sup>International Mechanisms for Promoting Freedom of Expression. (2011). Joint Declaration on Freedom of Expression and the Internet<\/em>. https:\/\/www.osce.org\/files\/f\/documents\/e\/9\/78309.pdf<\/a><\/span>:
      \nThis is a joint declaration by the UN Special Rapporteur on the Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe, the Representative on the Freedom of the Media, the Organization of American States, the Special Rapporteur on Freedom of Expression, the African Commission on Human and People\u2019s Rights, and the Special Rapporteur on the Freedom of Expression and Access to Information. This Declaration states that states have an obligation to promote universal access to the internet,      11<\/a><\/sup>International Mechanisms for Promoting Freedom of Expression. (2011). Joint Declaration on Freedom of Expression and the Internet, <\/em>Para 6 (a) and (e).https:\/\/www.osce.org\/files\/f\/documents\/e\/9\/78309.pdf<\/a><\/span> which is an integral part of ensuring that individuals have access to other rights such as the right to education, healthcare, assembly, association, and free elections.12<\/a><\/sup>International Mechanisms for Promoting Freedom of Expression. (2011). Joint Declaration on Freedom of Expression and the Internet<\/i>, Para 6 (a). https:\/\/www.osce.org\/files\/f\/documents\/e\/9\/78309.pdf<\/a><\/span> Further, it states that cutting off the internet for whole populations or segments of the public can never be justified, even on public order or national security grounds.13<\/a><\/sup>International Mechanisms for Promoting Freedom of Expression. (2011). Joint Declaration on Freedom of Expression and the Internet<\/i>, Para 6 (b). https:\/\/www.osce.org\/files\/f\/documents\/e\/9\/78309.pdf<\/a><\/span><\/li>\n
    2. The European Declaration on Digital Rights and Principles for the Digital Decade:14<\/a><\/sup>Declaration on European Digital Rights and Principles. (2022). European Commission. https:\/\/digital-strategy.ec.europa.eu\/en\/policies\/digital-principles<\/a> <\/span>:
      \nThe European Union (EU) intends to extend high-performance broadband access to all citizens and help them build their digital skills and competencies to fully participate in the digital economy.      15<\/a><\/sup>Declaration on European Digital Rights and Principles. (2022). The EU Digital Decade: A New Set of Digital Targets for 2030<\/i>. European Commission. https:\/\/www.europarl.europa.eu\/RegData\/etudes\/BRIE\/2021\/696189\/EPRS_BRI(2021)696189_EN.pdf<\/a> <\/span> This vision was proclaimed in 2021 as part of the European Commission's vision for the Digital Decade, a ten-year plan to accelerate the digital transformation of the EU.16<\/a><\/sup>Commission Puts Forward a Declaration on Digital Rights and Principles for Everyone in the EU<\/i>. (2022). European Commission. https:\/\/ec.europa.eu\/commission\/presscorner\/detail\/en\/IP_22_452<\/a> <\/span> In pursuance of the same, the Declaration on Digital Rights and Principles for the Digital Decade sets out ten principles: human-centricity, transparency, fairness, accessibility, education and literacy, openness, sustainability, innovation, trust, and democracy. The Declaration is intended to serve as a framework for the development of digital policies and regulations in the EU and guide the actions of governments, businesses, and other stakeholders involved in the digital ecosystem.<\/li>\n<\/ol>\n

      5.1.2.3 International advocacy efforts<\/h4>\n
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      1. Internet Rights and Principles Coalition of the Charter of Human Rights and Principles for the Internet:17<\/a><\/sup>Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. <\/i>OHCHR. https:\/\/www.ohchr.org\/sites\/default\/files\/Documents\/Issues\/Opinion\/Communications\/InternetPrinciplesAndRightsCoalition.pdf<\/a><\/span>: The Charter was developed during the Internet Governance Forum by the Internet Bill of Rights Dynamic Coalition in order to translate human rights for the governance of the internet. The first right in this Charter is the right to access the internet,18<\/a><\/sup>Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. <\/i>OHCHR, p. 15. https:\/\/www.ohchr.org\/sites\/default\/files\/Documents\/Issues\/Opinion\/Communications\/InternetPrinciplesAndRightsCoalition.pdf<\/a><\/span><\/span> which is integral to attaining a plethora of other freedoms such as expression, education, association, and work. According to the Charter, \u201cThis right shall not be subject to any restrictions except those which are provided by law.\u201d19<\/a><\/sup>Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. <\/i>OHCHR. https:\/\/www.ohchr.org\/sites\/default\/files\/Documents\/Issues\/Opinion\/Communications\/InternetPrinciplesAndRightsCoalition.pdf<\/a> <\/span> Some elements of the right mentioned in the Charter include quality of service, freedom of choice of system and software use, net neutrality, and digital inclusion.20<\/a><\/sup>Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. <\/i>OHCHR. https:\/\/www.ohchr.org\/sites\/default\/files\/Documents\/Issues\/Opinion\/Communications\/InternetPrinciplesAndRightsCoalition.pdf<\/a> <\/span><\/li>\n
      2. Feminist Principles of the Internet:21<\/a><\/sup>Feminist Principles of the Internet<\/i>. (2016). Association for Progressive Communications. https:\/\/feministinternet.org\/en\/principles<\/a><\/span>:
        \nThe Feminist Principles of the Internet are a series of statements that view digital rights through the lens of gender and sexuality rights. It is an initiative spearheaded by the Association for Progressive Communications. The statements call upon all internet stakeholders to enable more women and queer persons to enjoy universal, acceptable, affordable, unconditional, open, meaningful, and equal access to the internet.        22<\/a><\/sup>Access, Feminist Principles of the Internet<\/i>. (2016). Association for Progressive Communications. https:\/\/feministinternet.org\/en\/principles<\/a><\/span><\/li>\n<\/ol>\n<\/div>\n<\/div><\/div><\/div>

        Footnotes<\/h3>\n
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