MITLA addresses the NSTF Mini European Assembly
Dr. Antonio Ghio, President of the Malta IT Law Association has addressed the NSTF Mini European Assembly today, Friday 15th April 2016.
Below is the speech delivered:
Honourable Members of the House, Distinguished Guests,
It is indeed a great honour for me to be able to share with you some thoughts about cyber rights and their importance in our lives.
The rapid evolution of the “information society” has presented us with a reality in which existing laws are struggling to keep up with technological innovation. Never has the world changed so quickly as today.
The application of our existent human rights to our digital existence has become all the more blurred, making it harder for the state, legislators, the judiciary and citizens to understand them.
Today, individuals generally perceive their activities online as a given right, a right which should not be restricted. Many of you here however do not remember the days in Malta, around thirty years ago, where computers where illegal and a special licence issued by government was required for their importation. Nowadays we depend on technology and a day without internet or social networks almost feels like a day in solitary confinement.
It would be short-sighted not to recognise such changing realities in our legislation. Removing the ambivalence in the use, access and enjoyment of cyberspace therefore emerges as compulsory.
The Internet as we know it (comprising both technical infrastructure and content) is recognised as a fundamental, unprecedented tool for the promotion and enjoyment of existent fundamental human rights and freedoms. But do are laws or legal norms reflect this? Did our laws catch up with technology?
Recent events, including the revelations by Snowden and legal cases instituted by Max Schremms against Facebook have further catalysed the discussion relating to the Internet, and the extent to which it represents a unique and transformative enabler for the enjoyment and exercise of basic human rights.
The Arab Spring uprisings are clear testament to the fact that the Internet is one of the most powerful tools that can challenge repression and authority, a tool bringing people together. It is this ‘force’ that the people want to safeguard.
These historical events have however raised a parallel concern. Certain governments, having themselves savoured the strength of the Internet in enabling information flows, have, often successfully, imposed legal and technical controls either by increasing surveillance, restricting access, or increasing censorship. A number of states (including European states) have sought to apply existing laws or have enacted new Internet-specific laws that limit access to the Internet, prohibit or filter content, impose burdensome obligations and liability on ISPs and limit anonymous use, amongst others.
International, regional and national legal instruments have throughout recent years endeavoured to establish, promote and safeguard a set of exclusive human rights which could be considered to be sufficiently broad and pertinent to the Internet but more legal clarity is indeed required.
Major players worldwide, including the EU, several Rapporteurs of the United Nations, OSCE, IGF and World Summit on Information Society amongst others, have recognised that the Internet does interplay with the existing body of laws protecting fundamental rights and freedoms.
The Internet therefore is to be seen as an enabler of fundamental rights but also as an important building block for the generation of a whole range of other rights which as yet are not explicitly provided for in international treaties and national laws, or which, although provided for, require further clarification or protection.
Do we have a right to remain anonymous online? Do we have a right to encryption? These questions are generating discussions across the globe and no uniform answer currently exists.
Many authors have argued that the right to access and use the Internet must itself be a human right because limiting such right will not merely be an inconvenience to the citizen but would represent the suppression of “something far more fundamental”. Some have ventured as far as stating that the Internet itself should comprise a human right.
Others, such as Vint Cerf, the ‘father of the internet’, think otherwise. They claim that the Internet is nothing more than a means to an end, another tool, which although innovative and incomparable to any other, remains a mere tool and something that cannot be deemed to comprise a human right. These rights are part and parcel of the existent human rights and which do not need recognition as human rights in themselves.
But the Internet is not just “another” tool. It represents something much more fundamental, deserving a much stronger recognition and protection than anything else.
Should our laws therefore recognise the heightened importance of the Internet as a tool for the complete enjoyment of these fundamental rights? The answer is Yes.
In 2012 the UN Human Rights Council passed a Resolution regarding the promotion, protection and enjoyment of human rights on the Internet where it was affirmed that “the same rights that people have offline must also be protected online, in particular freedom of expression” and called upon all states “to promote and facilitate access to the Internet and decide to continue its consideration of how the Internet can be an important tool for development and for exercising human rights”.
Such a resolution however is unenforceable. It does not create real rights for the citizens within their own national laws.
Concepts such as online privacy, internet access and informational self-determination should be recognised as distinct and independent digital rights. They should set the bar on the values and role that technology plays in our lives. Such principles, enshrined in legally enforceable provisions, should serve as a litmus test against which we measure any new law which could be perceived as invading our access and enjoyment of our human rights on the Internet, including ourright to privacy, our right to be part of a digital community, our right to express ourselves freely. Additionally, the State should ensure that any existing law or newly promulgated law respects and complies with such digital rights.
But what are these rights in practice? These can be broadly categorized into three distinct, yet interrelated, rights.
First, a right to Internet access.
There should be a clear, unequivocal and legally binding recognition by the State that every citizen should be able to have access to the Internet by which they can participate in the information society. In fact, such broadband right is already enshrined in a limited number of constitutions in the world. As a direct effect of this right, the State should then undertake to refrain from introducing laws that unnecessarily impinge upon Internet Access, including laws having “graduated response mechanisms”, particularly those without having proper, transparent judicial review.
Furthermore, any citizen who desires to access the Internet should not be impeded from doing so by restrictions that are unjustifiable or unnecessary in a democratic society.
Second, a right to informational access and dissemination
Just as it would be pointless to be given access to a house where all the rooms are locked, a right to Internet access on its own is useless unless proper guarantees are put in place to ensure that users have a right to access information and content available online without undue restrictions. Whilst these principles may already be broadly enshrined in international conventions, a clear reference stating that this right also applies to information available through the Internet is warranted.
Such right can also be seen as an extension of current rights relating to freedom of expression. This right would thereby extend this fundamental human right by recognising its applicability within the information society, which provides tools for all digital participants not just to access information freely, but to become active authors and content creators, thereby expressing themselves.
Third, Informational Self-Determination
The concept of Informational Self-Determination, especially as defined in landmark constitutional judgments in Germany in the 1980s is also understood as the ‘right of an individual to decide what information about himself should be communicated to others and under what circumstances’. This goes beyond what can already be found in the right to privacy and the myriad of laws relating to data Protection, even though the proposed EU General Data Protection Regulation aims to move closer towards this direction.
The inclusion of a specific right to digital informational self-determination would highlight the importance that privacy has in the information society, beyond simple generic provisions, assisting in the removal of perceived doubts that the State would or could become a Big Brother through online monitoring of its citizens, something which unfortunately has become too common on both sides of the Atlantic.
It is through the free flow of information that digital civil rights can be enjoyed but surely such free flow of information is not absolute.
Experience has shown that many States directly or indirectly restrict, control, manipulate and censor content available online as well as invade citizens’ privacy without proper legal basis, or based on broad and ambiguous laws, without justifying the purpose of such actions in a manner that is clearly unnecessary or disproportionate. The rising threat of terrorism and criminal activity in general, unfortunately, has been used too many times as a pretext by governments to invade our privacy and restrict our online existence without sufficient legal basis.
In principle, there should be as little restriction as possible to information flows except in a few exceptional and limited circumstances. The situations leading to a restriction of these information flows affecting the enjoyment of our digital civil rights, and which should also be reflected in any legislative intervention, should be provided by law, be clear, transparent and accessible to everyone.
Any such restrictions must be “justifiable” and must be proven to be “necessary” in a democratic society. In all cases, any restriction to informational flows should 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 and with adequate safeguards against abuse including the possibility of challenge and remedy against its abusive application.
A Private Members Bill, presented to this very House in May 2014, almost two years ago, proposed constitutional amendments, aimed specifically at introducing, through directly enforceable provisions, these three cyber rights within our own Constitution, thereby recognising within the Constitution itself, the importance of the Internet as a tool for the enjoyment of some of our fundamental human rights. Unfortunately however, such Bill is still waiting to be included in this Parliaments agenda. I dearly hope that this House recognises the importance of such proposed legislative interventions and moves to discuss this Bill in earnest. Without any doubt, there is no higher law than our Constitution to protect our cyber rights. A noble initiative like this Mini European Assembly should serve as a perfect example for our elected representatives to take action.