Last month, the government published a White Paper for public consultation, proposing the introduction of four so-called "digital rights" in the Constitution: (1) the right to Internet access; (2) the right to informational access; (3) the right to informational freedom and (4) the right to digital informational self-determination. The White Paper proposes that such rights be included within the "Declaration of Principles" Chapter of the Constitution, in other words as mere declaratory, non-enforceable "rights".
The proposal is indeed a step in the right direction but lacks punch where it matters most.
The notion of human rights: Beyond perceptions
The White Paper unfortunately bundles the so-called "right to Internet access" – on which there has been extensive academic debate as to whether it should even be recognized as a legally enforceable right (let alone a fundamental human right) – with the other three "digital rights" which have a human rights pedigree, being facets of or closely linked with the rights to freedom of expression, freedom to receive and communicate ideas and information, and the right to privacy and informational self-determination.
The White Paper discusses whether access to the Internet is a fundamental human right. A curious – and rather dangerously demagogic – argument is made in the White Paper based on what it calls "the people's perception". Basing itself on a 2010 BBC (UK) survey, the White Paper argues that there seems to be a widespread perception in the general public that "fundamental human rights play a part in the discussion" whether access to the Internet is a human right and that indeed, "it would be politically inadvisable to ignore this perception" because "the people have so dictated" (p.7). Indeed, the White Paper continues, this perception "can only grow stronger" and "indeed evolving into an expectation that access to the Internet should be recognized as a right if not a fundamental human right" (its emphasis). The same argument that fundamental human rights play a part in this discussion "because the people have so dictated" is repeated on page 11.
I disagree strongly with this argument. Technology is an enabler of rights, not a human right itself. What gives certain basic – indeed fundamental – rights the status of human rights is not the fact that "the people" have such a "perception" which then develops into an "expectation". It is the fact that certain rights are inalienable rights to which each human being, by virtue of being a human being, is inherently entitled. This is a high bar and, as Vinton Cerf, one of the fathers of the Internet, put it, "[i]t is a mistake to place any particular technology in this exalted category, since over time we will end up valuing the wrong things." Indeed, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, though recognizing that "the Internet has become an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress," stopped short of declaring that access to the Internet is itself a human right, but encouraged states to consider "ensuring universal access to the Internet" as a priority.
It is thus laudable that the government considers universal access to the Internet to be a priority issue for Malta, both through its policies and by itself taking and encouraging the private sector to take the necessary infrastructural measures. The discussion whether this should also be done through the enactment of a legally enforceable (though ordinary) right to Internet access is also timely.
Rights to receive information and freedom of expression already exist
Freedom of expression and the right to receive information are already legally-enforceable human rights in the Constitution of Malta in article 41. This article is technology-neutral. Thus the right to freedom of expression, including the freedom to receive information and ideas, is not dependent or conditional on the type of medium used to exercise or enjoy this fundamental human right. The manner in which Article 41 of the Maltese Constitution is drafted is broad enough to encompass new technologies and new media. There is thus no need for repetition, especially through some declaratory provisions in the Constitution which are not enforceable. Such rights already exist: what holds offline, holds online.
The proposed right to digital informational self-determination and privacy
The fourth proposed right – the recognition, promotion and protection of a culture of digital self-determination – is the most interesting, but it does not go far enough. The White Paper seems to have gotten the wrong end of the stick. The right to privacy, though recognized at a European and international level as a fundamental human right, is not an enforceable right in the Maltese Constitution. Section 32(c) of the Constitution does recognize that every person is entitled to the right "to respect for his private or family life". However, section 32 is not enforceable before a court of law. It is merely declaratory. Nor is the right to privacy elaborated further in any of the subsequent and enforceable human rights provisions in the Constitution. However, the right to privacy is recognized as a human right in the European Convention Act. Nevertheless, while the fundamental human rights provisions in the Constitution are entrenched and thus require a two-thirds majority vote in Parliament for their amendment, the European Convention Act, like any other ordinary piece of legislation, may be amended or repealed by a simple majority vote in Parliament.
It is commendable that the Maltese Government sees the need for promoting a culture of informational self-determination. However, it would be more effective if this were done through a legally enforceable and constitutionally entrenched right to privacy and informational self-determination. What we do not need is another declaratory provision in the Constitution, let alone one which is tied only to information and communication technologies. Such a right should be technology-neutral, apply offline as well as online, and constitutionally entrenched and enforceable.
*This article first appeared in The Times of Malta, edition of 28 November 2012 and is being reproduced on www.mamotcv.com with the kind permission of the author.
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