ARTICLES

 

The nature of rights and access to the Internet

 

 

Daniël Eloff

LLB LLM PGDip Human Rights Litigation Lecturer, Department of Law Akademia

 

 

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SUMMARY

The question of whether a right to Internet access exists often centres around whether it "should" be a right and not whether it "could" be a right. Although some proponents of Internet-access-as-a-right might hold lofty and praiseworthy ideals, something does not become a right simply by being proclaimed as a right. That would be a superficial and hollow perception of the nature of rights. The admirable desire to grant a "rights" status to access to the Internet is as seductive as it is problematic. The Internet is a medium that enables the exercise of other rights but access to the Internet is not a right in itself. Moreover, the Internet as a medium is not intrinsic to being human. To proclaim access to the Internet as a right therefore unthoughtfully diminishes the very nature of rights. The proposition is perilous, given the context of South Africa's struggle to ensure rights for all who live here, and it cheapens those rights that have been won.

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1 INTRODUCTION

The Internet has arguably become the most important communication platform in our contemporary world.¹ Therefore, the question whether access to the Internet could and should be considered a legal right has become increasingly relevant, but whether such access can be considered a right remains open for debate.

The focus of this article is two-fold. First, the article discusses the nature of rights and various philosophical perspectives on the nature of rights. Secondly, this article delves into whether access to the Internet could be considered a right, as well as whether it should be considered a right.

When referring to rights, the terms "human rights" and "natural rights" are often used interchangeably. However, these terms do have vastly different interpretations and meanings, which are discussed below.

This article analyses whether there exist compelling semantic, conceptual and constitutional grounds to suggest that access to the Internet should be a right. A comprehensive analysis of each and every theoretical framework of rights is beyond the scope of this article. From the outset, discussion is limited to the concept of rights from a natural law perspective. This article mainly and broadly focuses on the theory of natural law, as it developed from Greek and Roman natural rights to the Hobbesian and Lockean theories of rights, and on to how this has affected contemporary South African jurisprudence.

 

2 WHAT ARE NATURAL RIGHTS?

Although the focus of post-1994 jurisprudence in South Africa placed a heavy emphasis on human rights, the concept of natural rights remains central to our understanding of justice and the law.² It is therefore necessary to consider that the Constitution states in section 7(1) that the rights contained in the Bill of Rights are the cornerstone of our democracy and that the Bill of Rights enshrines the rights of all people.

The term "right" simply means to be entitled to a particular thing, any deprivation or denial of which will constitute an injustice.³ The concept of natural rights or ius naturale dates back to ancient Greece and has been developed throughout history.⁴ The detailed history of the development of human thought regarding natural rights is worthy of extensive study in itself but, as mentioned previously, is not discussed here in any detail. Instead, a synopsis of certain highlights in its development is given.

2 1 Greek and Roman natural rights

During the early development of the concept, natural rights were seen as having a divine foundation.⁵ They were, therefore, seen as being both objective and universal.⁶ Aristotle was an early writer who referred to natural rights. He drew a distinction between nature and law, stating that the law might differ from community to community but nature, or rather the law of nature, was consistent and the same in every community (polis).⁷

The polis in Aristotle's view developed from early forms of human associations such as villages and households.⁸ It is important to note that the polis or political society that Aristotle described differs vastly from political society as we know it today. In contrast with modern states, the polis did not have a monopoly on the use of force to administer laws.⁹

Aristotle argued that the community and its laws pre-existed the individuals within the community.¹⁰ In his view, the community as a grouping of people came first; without the community, the individuals did not exist.¹¹ In Aristotle's view, natural rights are derived from living within the polis and through rational thought.¹² This diverges from the traditional view that natural rights are obtained from a Creator and rather posits that natural rights are obtained by living within a community. Aristotle believed people were first and foremost social and political beings predisposed to living within groups.¹³

He argued that "rights" should be constituted to be sovereign over all matters and that these "rights" or laws should be binding on both the individuals and the "magistrates" or interpreters of the law.¹⁴ Despite placing great emphasis on individualism, Aristotle believed that the individual could not exist outside of the polis; justice or the application of natural rights could only be achieved within the polis.¹⁵ The natural rights that Aristotle argued for were enforceable against all other individuals in the polis, including the rulers within the polis, but these rights were not enforceable against the polis itself.¹⁶

In Aristotle's view, the natural law and natural rights existed independently of human laws and all within the polis were subject to them. In short, natural rights existed without governments mandating or approving their existence. Although Aristotle's work was more philosophical in nature than concrete legal work, it did provide the foundation upon which the concept of natural rights could be further developed by those to follow.¹⁷

The Roman philosopher Cicero built on the work by Aristotle and said that natural rights contributed to the well-being of society as a whole. Cicero expressly stated that rules and societal customs were not, in their nature, laws.¹⁸ Rather, he argued that laws were a reflection of what was objectively just and true. Therefore, any rules enacted by the community (or by rulers of the community) that were not objectively just or moral could not be considered as law. He maintained that justness and morality were determined through rationality and that all people had reason in common.¹⁹ Therefore, because all people had the ability to reason, human nature was, at its core, a reflection of natural law.

In his great work, De Legibus, Cicero defines the word "law" as having two senses. First, he states that the law can be defined as that which society places in writing to command and prohibit certain actions.²⁰ Cicero viewed this as the superficial meaning of the word "law".²¹ Instead, Cicero argued that the law was derived from nature itself.²²

Since Cicero viewed natural rights as being derived from nature and objectively true, he viewed natural rights as a universal concept that was applicable to all societies all over the world.²³ He grounded the natural law and natural rights in God, reason and nature. Natural law, according to Cicero, was created by God, placed in nature, and discoverable through reason.²⁴

Despite drawing a clear distinction between the concept of law in the popular sense of the word and what Cicero deemed to be its true meaning, Cicero argued that there existed an interplay between the two meanings.²⁵ The popular opinion of the law had to be shaped by the true natural law definition in order to achieve the ultimate public good and benefit.

Cicero viewed the law as an objective, fixed set of rules but believed that its interpretations vary and change over time as "philosophers" gain more wisdom through reason.²⁶ Therefore, according to Cicero, although natural rights were universal - a ius gentium as it was phrased by him - and they were discoverable, they were not always clear or applied similarly in all societies.²⁷ Although natural law and natural rights are not always clear to us, they are unchangeable and therefore not subject to the whims of the rulers of people.

In Cicero's view, governmental authorities (or the State) existed in order to uphold the natural law and to protect natural rights.²⁸ Since natural rights existed objectively and unchangeably, a state that did not uphold these rights was not considered a legitimate state. The State, therefore, did not determine which rights existed, and which did not, because rights existed universally.²⁹

Both Aristotle and Cicero built the foundation for the concept of natural rights to be further developed and crystallised.

2 2 Hobbes and Locke

The theory of natural rights led to the wide-scale adoption of modern nation states; and English philosopher John Locke provided the modern foundation for inalienable individual rights within the framework of a nation state.³⁰

Locke wrote that rights are that which rightly and morally belongs to each individual and therefore cannot be taken away from the individual without an injustice being caused.³¹ It is important to note that Locke wrote his famous work against a backdrop of the sovereignty of monarchy, where the sovereignty of the individual was a foreign concept.³²

Locke argued that natural rights did not come into existence through human creation.³³ These rights were not produced by humans; rather, they are in existence and belong to all human beings by virtue of being and living within the state of nature.³⁴ Universally, all individuals have these rights in common, and they do not differ from individual to individual. Therefore, according to Locke, these rights exist regardless of whether they are acknowledged by different states or authorities, because these rights exist in the state of nature.

Natural rights, according to Locke, arise from what he described as the state of nature. The state of nature was a device used by Locke to clarify natural rights. The state of nature, according to Locke, is the perfect state of equality and freedom.³⁵ This state of nature is described as a space within which all people are equal and able to conduct their affairs and make their decisions as they deem fit, provided that this is done within the bounds of the laws of the state of nature.³⁶

However, in view of the fallibility of human nature, Locke argued that natural rights are, in essence, uncertain and not guaranteed.³⁷ Locke therefore submitted that there is a need to create a political society that protects the natural rights and freedoms to be enjoyed by each individual. The natural rights that Locke identified include the right of free speech, the right to freedom of religion, the right of assembly, and the broad right of press freedom.³⁸

To protect these rights, Locke found that a second class of rights is necessary.³⁹ These additional rights are not natural rights but they are needed to ensure that natural rights are protected within political society. These include limitations on state power to protect fundamental natural rights.⁴⁰

Locke described human beings as social beings who are living within communities as social beings, and therefore distinct social contracts were necessary to protect the natural rights of all people from violations by others.⁴¹

The enjoyment of the natural rights described by Locke is, however, limited by the law of nature.⁴² The law of nature creates obligations for each individual because of the equality in the state of nature.⁴³ As all are equal and independent, no individual should harm another individual's life, health, liberty or possessions.⁴⁴ In the state of nature, individuals are entirely free to dispose of their possessions but are not free to destroy themselves or others and their possessions. Liberty, therefore, does not equate to licence to abuse others because it is prohibited by the law of nature.⁴⁵

The rights that are protected are, in Locke's view, expressed mainly as negative restrictions rather than positive entitlements. This entails that one is obligated to refrain from infringing on the pursuits of others to fulfil their rights because the rights themselves do not guarantee compliance with the rights. Locke's ambit of natural rights is therefore limited to that which is necessary for the civil authority to ensure the protection of rights and nothing more. The authority of the State to ensure natural rights is limited to the natural rights themselves and cannot, in his view, be elaborated or expanded upon.⁴⁶

Thomas Hobbes was another seventeenth-century English philosopher who played a fundamental part in developing the theory of natural rights.⁴⁷ Hobbes's most famous political philosophy work is Leviathan, first published in 1651.⁴⁸ Unlike Locke, Hobbes believed that the state of nature should be avoided at all costs. Hobbes posits the question of how life would be without the State or any authority.⁴⁹

According to Hobbes, within the state of nature, each individual will act in their own interest and therefore be their own judge, jury, and executioner in any potential dispute. Should the state of nature exist, life would be, in Hobbes's words, "[s]olitary, poor, nasty, brutish, and short".⁵⁰

Despite disagreeing on the state of nature, Hobbes and Locke held similar views on the fact that natural law and natural rights were not to be confused with the law of man. Hobbes provided for a number of laws of nature that are eternal and immutable, yet which are weak and incapable of enforcing themselves in the state of nature.⁵¹ Hobbes accordingly argued for the necessity of state authority to protect these rights that exist universally but which need to be protected.⁵²

The natural rights that Hobbes listed gave freedom to individuals, yet Hobbes made a clear distinction between liberty and power.⁵³ Hobbes argued that should an external hindrance exist that restricts voluntary action, this is a lack of freedom, but when an internal hindrance exists to restrict voluntary action, this is rather a lack of power.⁵⁴ This was an early notion of the idea of negative rights that prohibit action and the impediment of rights.

In Hobbes's view, natural rights existed within the state of nature, but they were threatened by human nature. It was, therefore, necessary to create the authority of a civil government or state to ensure that these rights are protected and upheld.⁵⁵ Hobbes held that there were two main rights that should be protected, namely the right of the individual to pursue a peaceful life and the right of the individual to protect that pursuit of a peaceful life by any means necessary.⁵⁶

Both Locke and Hobbes are seen to have held strong individualistic positions, albeit for vastly different reasons. Both writers believed that a form of civil government or a state is necessary so as to protect certain inalienable rights. This position led to the adoption of individual natural rights within the constitutional and legal frameworks around the world and, because of the focus on individuals, paved the way for human rights to be adopted the world over.

The development discussed above provides the basis for the liberal democracies of the world and the constitutionalism we enjoy. Had it not been for this foundational development, many freedoms we currently enjoy would not have existed.

2 3 From natural rights to human rights

The concept of natural rights morphed into the modern term "human rights" through three distinct generations of rights.⁵⁷

In the United States Declaration of Independence of 1776, the founders of the United States of America stated that there are certain rights derived from the law of nature (natural rights) and from the Creator of nature. The second paragraph of the Declaration reads:

"[W]e hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Liberty and the pursuit of Happiness. - that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."⁵⁰

The idea that "all men" hold "certain inalienable rights" means that all human beings possess these rights.⁵⁹ All human beings have these rights owing to our very existence as human beings, which makes them inalienable regardless of any personal characteristic such as race, sexual orientation or class but, most importantly, regardless of which time they lived in. As proposed by political theorist Maurice Cranston, these rights apply to all people at all times and in all situations.⁶⁰

The American founders placed great emphasis on the fact that these inalienable rights stem from a higher authority.⁶¹ The rights espoused by the American founders are first-generation rights that closely relate to natural rights.⁶²

The most prominent and early use of the term "human rights" was shortly after the Second World War in the Universal Declaration of Human Rights, which was adopted by the United Nations General Assembly in 1948.⁶³ The adoption of this document served as a statement of intent by the adopting countries, but it had no provisions to enforce the 30 listed and adopted rights.⁶⁴ Yet, despite not factually being applied by all adopting nations, the Universal Declaration of Human Rights to this day still functions as a foundational document, informing international law and indeed domestic laws around the world.⁶⁵

The important distinction between natural rights and human rights is that the inalienability of natural rights does not come from the State; rather, it is secured by State authority.⁶⁶ The State secures these rights through creating and maintaining the political society in which rights can be exercised or protected.

Human rights are conceived of as the fulfilment of human needs and not as natural rights given to individuals owing to the distinctive value of being human.⁶⁷ Although human rights have been used interchangeably with natural rights, the contemporary use of the term "human rights" does not have the same meaning as "natural rights" does.⁶⁸

2 4 Three generations of human rights

One of the most generally accepted categorisations of human rights is into three distinct generations of human rights. The first classification of human rights into three distinct generations of rights was made in 1977 by Karel Vasak.⁶⁹ Vasak categorised human rights into: first, civil and political rights; secondly, economic, social, and cultural rights; and, thirdly collective or solidarity rights.⁷⁰

Two years later, in 1979, Vasak used the three concepts of the French Revolution, namely liberty, equality and fraternity (liberté, egalité, fraternité) to illustrate the three generations of rights that he identified.⁷¹

2 4 1 First-generation rights

The concept of human rights in its initial phase was identical to natural rights. These first-generation rights are described as civil and political rights.⁷² They are what writers such as Locke and Hobbes wrote about and are the rights that were developed by these seventeenth- and eighteenth-century legal scholars. As the authority and influence of states grew, the necessity for these civil and political rights became increasingly important.⁷³ These universal rights focused on the individual and the concept of non-intervention, which essentially protected individuals from the states that governed their activity.⁷⁴

The key characteristic of these rights is that they are so called negative rights.⁷⁵ Negative rights ensure that individuals are not subjected to the actions of other individuals or authority; they prohibit the use of force or coercion when consent is not given.⁷⁶ Negative rights protect against the action of other individuals or the State. In short, negative rights exist until they are negated through another's action.

It is, however, important to note that first-generation rights are not completely negative. Although first-generation rights generally require states or individuals to refrain from particular actions, some first-generation rights require positive action from state authorities to ensure that these rights are guaranteed.⁷⁷ For example, in order to ensure the right to life, which is a negative right, states around the world are required to act positively through state-sponsored protection to protect this right.

The concept of first-generation rights finds its roots in the United States of America Bill of Rights and the French Declaration of Rights of Man and of the Citizen.⁷⁸ Both these documents built on the ideas enshrined in the Magna Carta and elaborate on further rights.

First-generation rights include the right to life, the right to equality, the right of free speech, and the right to freedom of religion, as well as political voting rights.⁷⁹

The potential right to Internet access does not fit into this categorisation of rights, not only because when first-generation rights were crystallised the Internet did not exist, but because it does not share similar characteristics to civil or political rights.

2 4 2 Second-generation rights

The International Covenant on Economic, Social, and Cultural Rights,⁸⁰ which was adopted by the United Nations General Assembly in 1966, is a central document in the establishment of second-generation rights.⁸¹

Second-generation rights are considered to be mainly economic and social rights.⁸² These rights shifted the focus away from liberties and highlighted the outcomes of rights.⁸³ Second-generation rights endeavoured to achieve particular tangible outcomes that, at least in theory, attempted to advance living standards of individuals. They include the right to housing, the right to health care, the right to adequate working conditions, and the right to education.⁸⁴

These rights characteristically impose a positive obligation on states or governments to promote the outcomes that these rights are aimed at, unlike first-generation rights, which are mostly negative rights.⁸⁵

2 4 3 Third-generation rights

Third-generation rights are a new addition to the legal vocabulary. Third-generation rights aim to address modern societal issues and challenges that are deemed not to be addressed by first- and second-generation rights. Third-generation rights are often referred to as solidarity or collective rights.⁸⁶

In contrast with first- and second-generation rights, third-generation rights can be seen as group rights. Clear examples include references to "women's rights" or "minority rights". These rights encompass a broad range of second- and third-generation rights that are deemed not to have been protected for these particular classes or groups.⁸⁷

2 5 Liberty rights versus entitlement rights

With the development of rights into three distinct generations, there seems to have come about a clear distinction to be drawn between liberty rights and entitlement rights.⁸⁸ Liberty rights protect the right to act freely, whereas entitlement rights are claims to goods and services from others.⁸⁹ Broadly speaking, first-generation rights are liberty rights - that is, they place a negative obligation upon others, including the State, not to infringe upon them, whereas second- and third-generation rights are generally claims to goods and services such as housing and health care.

For rights to be of any effect, not to mention substantial benefit, they have to be able to be applied universally.⁹⁰ The right to adequate housing is of little benefit when it cannot be guaranteed. The South African Constitution famously states that the rights it guarantees should be achieved through the State, which "must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights".⁹¹ These rights are therefore not universal because they are not guaranteed to all. In contrast, the right to freedom of expression or the right to life is universal.⁹²

Natural or human rights cannot be justified as being universal if rights are not universal claims to services, goods or amenities.⁹³ Although these claims are noble and commendable ideals, they should not be included in the same category as natural rights, as this reduces the status of ideas and the universality of rights will suffer as a consequence.⁹⁴

For any person, anywhere in the world, deprivation of natural or human rights, by very definition causes a severe injustice.⁹⁵ Should we consider access to the Internet to be a human right, then not only would 56,1 per cent of the world's population be facing a grave injustice by not having this right fulfilled, but the whole of mankind prior to the creation of the Internet in the 1960s would have been victim to a grave human-rights violation. Moreover, it is the author's opinion that there is no guarantee that the Internet will not sooner or later disappear as a relevant technology. The recognition of claims to entitlements as natural rights causes severe damage to such rights and their universality.⁹⁶

The universal enactment of liberties as human rights is a practical possibility. Broadly speaking, liberties only require individuals to respect the freedoms of others.⁹⁷ No claims can be made that cannot physically be fulfilled. Similarly, the universality of rights is closely tied to the fact that these rights cannot be surrendered despite the fact that they can obviously be unjustly infringed.⁹⁸

It is, however, important to mention that although entitlement rights should not be seen as natural or human rights, they could be considered as rights of a different kind, namely legal rights. Legal and natural rights are different sets of philosophical entities and equating the two should be avoided.

 

3 WHAT ARE LEGAL RIGHTS?

A common definition of legal rights is an interest that is recognised by law and protected by the rule of justice. The two main elements, therefore, are legal recognition as well as legal protection.⁹⁹ Although natural rights may also be considered legal rights (in that they are legally recognised as well as legally protected), not all legal rights are natural rights.¹⁰⁰

Every natural right forms part of the innate existence of every human being, and natural rights held by one individual (a natural person) are the same as those held by all other natural persons. That is why these rights are said to be universal rights. A so-called legal right, on the other hand, is created or received by or bestowed upon an individual person through operation of law. The number, nature and content of legal rights held by any one individual person may vary significantly from those held by other individuals. Legal rights are subject to change as may be deemed necessary from time to time. Natural rights, in contrast, cannot be changed or amended because of their universal nature.¹⁰¹

It is worth pointing out that legal rights are social constructs and that the content of legal rights is open to determination. Moreover, legal rights are connected to a particular time, place and context. To illustrate this point, it is trite that various countries guarantee the legal right to a nationality. This right is not rooted in the inherent necessity of a human being to have a nationality in order to exist, but rather came about with the emergence of nation states during the past three centuries. The legal right to nationality exists because it enables the fulfilment of other rights that are guaranteed by nation states.

Legal rights, which go beyond the scope of natural rights, are used as instruments to attempt to achieve certain material outcomes. Many second-and third-generation human rights (as discussed earlier in this article) go beyond the scope of natural rights; through legal recognition and protection of such rights, nation states attempt to solve societal challenges.¹⁰²

However, the mere fact that a legal right exists does not guarantee that the individual will necessarily enjoy the fulfilment of that right. The debate regarding legal rights versus natural rights and how they should be viewed and differentiated (if they should be differentiated at all) boils down to the age-old academic discussion and debate on the significance of natural law and legal positivism, respectively. The question of whether rights exist and belong to all human beings by virtue of our humanity, or whether rights exist because of governments or societies that create these rights, remains the central point of legal philosophical controversy and will likely remain so for many years to come.

 

4 INTERNET ACCESS AS A RIGHT

Despite the lofty ideals of some authors, it should be noted that the Internet remains a communication method - like television, postal services, and the radio.

Owing to the Internet's enormous influence on and societal benefit for humanity, the question of whether or not access to the Internet should be considered a right has naturally gained prominence throughout the media and academia.¹⁰³ The question often centres around whether it "should" be a right and not whether it "could" be a right. Although some proponents of this suggestion might hold lofty and praiseworthy ideals, something does not become a right simply through being proclaimed as a right. That would be a superficial and empty concept of rights.

In order to determine whether access to the Internet should be considered a right, three main questions have to be answered, namely:

1. Can the right of access to the Internet exist as a natural right?

2. Can the right of access to the Internet exist as a legal right?

3. If the right of access to the Internet can exist as a legal right, should it exist as a legal right?

4 1 Can the right of access to the Internet exist as a natural right?

To address the research topic of this article, it is important to define properly what rights entail and whether access to the Internet could be considered a right. If the definition of natural rights, as discussed above, is applied to accessing the Internet, it is clear that it is difficult to consider access to the Internet to be a natural, inalienable right that all human beings intrinsically possess by virtue of their humanity.

The author submits that the existence of a right to something depends on whether it fulfils the common characteristics of a right. As is clear from the development of natural rights, the core characteristic of natural rights is their universality. A right must be susceptible to universal application in order for it to be considered a natural right.¹⁰⁴ The question therefore is whether a right of access to the Internet has universal and intemporal application.

It seems quite impossible to consider access to the Internet as a natural right when measuring it against the universal nature of natural rights.¹⁰⁵ The Internet has only existed for the past 70 years, and it has only been extensively used for the past 30 years.¹⁰⁶ Moreover, it is uncertain how long the Internet will retain its current powerful technological role since further technological developments and improved communication methods are bound to take place.

Prior to the advent of the Internet, the right of access to the Internet was non-existent and therefore beyond the reach of any human being. Some writers, however, have argued that new rights can "come into existence".¹⁰⁷ This view, however, is philosophically problematic because of the universal nature of rights. If certain things are capable of becoming rights at any given time, they are similarly capable of ceasing to be rights.¹⁰⁸

Without giving recognition to the universal nature of natural rights, natural rights lose their influence and raison d'etre.¹⁰⁹ Rights are both important and influential if they are considered universal. If rights are not universally applicable, they cannot be considered inalienable, and if rights are not inalienable, they do not have the desired protection that we seek through their application - that is, the protection afforded by any universal right.¹¹⁰

There exists a profound danger in declaring that a right to Internet access exists. The author similarly argues that an alleged right to housing or health care sets a dangerous precedent both socio-economically and philosophically. As Eric Sterner correctly points out, a right to Internet access cannot logically exist as it is "a right based on the nature of the technology rather than that of the claimant".¹¹¹

Claiming that there exists a right to access the Internet is a material claim and not a universal claim of entitlement.¹¹² The claim that Internet access is a right is therefore a claim for the Internet as a technology and a physical tool. Recognising a claim to a technology and physical tool would seriously degrade and weaken the nature of rights because the fulfilment of this particular right would only materialise and exist sporadically, as and when access is achieved.

In 2017, the United Nations passed a resolution that emphasised the importance of Internet access for the fulfilment of various human rights.¹¹³ It is argued that access to the Internet is not a right in itself, but rather an enabler of rights.¹¹⁴ Access to the Internet facilitates the exercise of various rights such as the right to freedom of expression, the right of equality and various legal rights aiming at the material benefit of individuals.¹¹⁵ However, these rights do not stand and fall on the strength of access to the Internet alone. They are, and always have been, available - with or without access to the Internet - and certainly will still be so should the Internet ever disappear.

4 2 Can a right to access the Internet exist as a legal right?

Legal rights create legal obligations.¹¹⁶ Legal rights are, therefore, rights that are deemed sufficiently valuable to protect through legislation.¹¹⁷ Many natural rights are codified into legal rights through constitutions or statutes, but not all legal rights are natural rights.

Societies and states around the world classify various differing things as legal rights. Various rights in South Africa are granted protection through "ordinary" legislation rather than particular constitutional protection. Many rights are protected through legislation, and effectively so. An example is the statutory cooling-off period that is applied to various transactions in different jurisdictions. South Africa grants a cooling-off period when credit agreements are entered into, but not all foreign jurisdictions grant this protection.¹¹⁸ In South Africa, this cooling-off period is considered a right as it is determined to be beneficial to society, valuable and consequently worth legal protection.

The right to Internet access could, therefore, be promulgated to be protected as a legal right, but the author submits that it should not be. In making this legislative decision, the question remains to be discussed whether the right to Internet access should be protected as a legal right. This discussion follows below.

4 3 Should the right of access to the Internet exist as a legal right?

The question of whether access to the Internet should be a guaranteed right is a policy decision facing countries around the world. Policy decisions are subject to various factors - including, but not limited to, resource considerations.

In South Africa, we already see enshrined in the Constitution various rights that cannot be considered natural rights, but which are legal rights, and more specifically entitlement rights, recognised through the Bill of Rights.¹¹⁹ These include housing, environmental, health care, food, water and social security and educational rights.¹²⁰ These rights are not universal natural rights but are rights that are enshrined and elevated in our Constitution.

On a practical level, therefore, it is possible to elevate the right to Internet access to the same level through a constitutional amendment. Alternatively, the right could be guaranteed through the promulgation of legislation, which would, however, not grant the same protection against amendments as a right enshrined in the Constitution would.

A further challenge to guaranteeing a right of access to the Internet arises from serious resource limitations in South Africa. Just as the right to housing, although protected, cannot completely and universally be guaranteed by the Constitution owing to practical restrictions, similarly, a right of access to the Internet will not easily be guaranteed owing to similar resource limitations. The Constitutional Court has on various occasions held that constitutional rights such as adequate housing (a second-generation right) continues to exist despite the South African government's failure to fulfil its obligations to ensure the right.¹²¹ The author, however, submits that these decisions by the Constitutional Court have watered down the inherent value of these rights. As discussed earlier in this article, the value of a right is determined by its universality; that a right cannot be universally ensured hollows out the right.

Moreover, the right of access to the Internet may already be sufficiently protected by other rights. The right to privacy, the right to freedom of expression, and the right of access to information all indirectly touch on access to the Internet.¹²² These rights, particularly those in relation to Internet access, also bear reference to the right or freedom to seek, receive and impart information.¹²³ That being said, as much as the right to Internet access may be protected through various other existing constitutional rights, the right to access the Internet is as protected by these rights as the right to access postal services is.

The legal and political philosophy of cyber libertarianism strongly contends that as a broad principle, the Internet should be a space that maximises individual liberty and usage freedom.¹²⁴ Overregulation and governmental involvement limits the individual freedom of Internet users.¹²⁵ Therefore cyber libertarianism militates against overregulation and rather supports the foundational characteristics of the Internet for the maximisation of individual freedom.¹²⁶

As Sterner argues, rights are seriously cheapened when they are based on the existence of the technology rather than on our intrinsic humanity.¹²⁷ Elevating access to the Internet to the level of a right therefore risks weakening the concept of rights in South Africa, which can hardly be afforded given our history of gross rights violations. The attainment and fulfilment of hard-won rights in our country's constitutional rights-based dispensation cannot afford further degradation.

The South African Constitution famously proclaims a variety of rights, subject to what is referred to as "progressive realisation". Progressive realisation as argued for in the Constitution is a misnomer. The gist of this constitutional caveat is that the rights that our Constitution enshrines are viewed as goals and not fundamental realities inherent to each person. Those rights in the Constitution (the achievement of which are qualified behind the wall of progressive realisation) merely boil down to lofty ambitions to achieve material goals. They are therefore not rights. They are promises, and promises are not universal; nor are they intrinsic to being human.

 

5 CONCLUSION

It is clear that the term “right” has developed considerably since the dawn of human philosophy. Three distinct generations of right have appeared, which led to different theories of rights. Addressing the heart of the debate of whether anything could be considered a right, the author submits that a right could and should only exist if it can be universally applied and granted. Only by adopting this approach do rights retain the societal value that renders them worthy of protection.

Although the Internet has arguably been the most efficient and effectual enabler of human rights the world has ever seen and has undoubtedly strengthened the ability to preserve a variety of rights, access to the Internet cannot and should not be considered a fundamental right. The admirable desire to grant Internet access the status of a right is as seductive as it is problematic. The Internet is a medium that enables other rights and is not the object of a right in itself. Moreover, the Internet as a medium is not intrinsic to being human. To proclaim access to the Internet as a right therefore gravely diminishes the very nature of rights.

 

 

* This contribution is based on research conducted for the author's dissertation titled "A Comparative Inquiry Into Internet Neutrality in South Africa" (LLM dissertation, University of Pretoria) 2021.
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2 Soobramoney v Minister of Health (Kwazulu-Natal) 1997 (12) BCLR 1696 (CC) par 8 and 9.
3 Ashford "Human Rights: What They Are and What They Are Not" Political Notes No. 100 (1995) www.libertarian.co.uk (accessed 2021-03-04) 1-3.
4 Miller "Aristotle and the Origins of Natural Rights" 1996 The Review of Metaphysics 873.
5 Le Bel "Natural Law in the Greek Period" 1949 2 Nat L Inst Proc 3 8.
6 Ibid.
7 Miller 1996 The Review of Metaphysics 877.
8 Miller 1996 The Review of Metaphysics 878.
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10 Miller 1996 The Review of Metaphysics 879.
11 Ibid.
12 Ibid.
13 Miller 1996 The Review of Metaphysics 877.
14 Mirhady "Aristotle and the Law Courts" 2006 23 Polis: The Journal of the Society for Greek Political Thought 302 310.         [ Links ]
15 Miller 1996 The Review of Metaphysics 879.
16 Ibid.
17 Miller 1996 The Review of Metaphysics 874.
18 West "Cicero's Teaching on Natural Law" 1981 32 St John's Review 74 76.         [ Links ]
19 West 1981 St John's Review 77.
20 Ibid.
21 Ibid.
22 Ibid.
23 Levy "Natural Law in the Roman Period" 1949 2 Nat L Inst Proc 43 50.         [ Links ]
24 West 1981 St John's Review 78.
25 West 1981 St John's Review 77.
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27 Levy 1949 Nat L Inst Proc 45.
28 West 1981 St John's Review 78.
29 Levy 1949 Nat L Inst Proc 46.
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33 Locke Second Treatise of Government 2.
34 Ibid.
35 Ibid.
36 Dunn "The Contemporary Political Significance of John Locke's Conception of Civil Society" (1996) The Jerusalem Philosophical Quarterly 105 103.
37 Locke Second Treatise of Government 40.
38 Locke Second Treatise of Government 4.
39 Locke Second Treatise of Government 45.
40 Locke Second Treatise of Government 48.
41 Faulkner 2005 The Review of Politics 454.
42 Locke Second Treatise of Government 4.
43 Ibid.
44 Ibid.
45 Ibid.
46 Locke Second Treatise of Government 117.
47 Strauss The Political Philosophy of Hobbes: Its Basis and Its Genesis (1963) 155.
48 Hobbes Leviathan (2006) 1-10.
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54 Hobbes Leviathan 47.
55 Undersrud 2014 History of Political Thought 691.
56 Ibid.
57 Vasak "A 30-Year Struggle; The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights" 1977 11 The Unesco Courier 29.
58 Jefferson Copy of Declaration of Independence (1776).
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60 Cranston Human Rights, Real and Supposed (2002) 49.
61 Myers From Natural Rights to Human Rights 4.
62 Myers From Natural Rights to Human Rights 2.
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64 Cranston Human Rights, Real and Supposed 4.
65 Myers From Natural Rights to Human Rights 1.
66 Myers From Natural Rights to Human Rights 15.
67 Myers From Natural Rights to Human Rights 13.
68 Myers From Natural Rights to Human Rights 1.
69 Vasak 1977 The Unesco Courier.
70 Vasak 1977 The Unesco Courier 29.
71 Macklem "Human Rights in International Law: Three Generations or One?" 2015 3 London Review of International Law 12.
72 Macklem 2015 London Review of International Law 5.
73 Macklem 2015 London Review of International Law 6.
74 Myers From Natural Rights to Human Rights 10.
75 Myers From Natural Rights to Human Rights 7.
76 Vasak 1977 The Unesco Courier 29.
77 Myers From Natural Rights to Human Rights 11.
78 Vasak 1977 The Unesco Courier 30; Myers From Natural Rights to Human Rights 4.
79 Vasak 1977 The Unesco Courier 29.
80 UNGA International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (1966).
81 Myers From Natural Rights to Human Rights 15.
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83 Myers From Natural Rights to Human Rights 12.
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88 Penney "Internet Access Rights: A Brief History and Intellectual Origins" 2011 38 Wm Mitchell L Rev 10 24.
89 Penney 2011 Wm Mitchell L Rev 16.
90 Myers From Natural Rights to Human Rights 28.
91 Ss 24(b), 25(5), 26(2) and 27(2) of the Constitution of the Republic of South Africa, 1996.
92 Engle 2006 Ann Surv Int'l & Comp L 230.
93 Ashford "Human Rights: What They Are and What They Are Not" Political Notes No. 100 3.
94 Ibid.
95 Engle 2006 Ann Surv Int'l & Comp L 258.
96 Myers From Natural Rights to Human Rights 28.
97 Ashford "Human Rights: What They Are and What They Are Not" Political Notes No. 100 2.
98 Van Staden "Spontaneous Order or Central Planning? A Brief Overview of the Libertarian Approach to Law" 2021 84 THRHR 54.         [ Links ]
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100 Engle 2006 Ann Surv Int'l & Comp L 222.
101 Engle 2006 Ann Surv Int'l & Comp L 239.
102 Vasak 1977 The Unesco Courier 29.
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104 Engle 2006 Ann Surv Int'l & Comp L 258.
105 Ashford "Human Rights: What They Are and What They Are Not" Political Notes No. 100 3; Sterner "The Folly of Internet Freedom: The Mistake of Talking About the Internet as a Human Right" 2011 The New Atlantis 134-139.
106 Greenstein How the Internet Became Commercial: Innovation, Privatization, and the Birth of a New Network (2015) 159; Ashford "Human Rights: What They Are and What They Are Not" Political Notes No. 100 3.
107 Shestack "The Philosophic Foundations of Human Rights" 2017 Human Rights Quarterly 215.
108 Myers From Natural Rights to Human Rights 28.
109 Sterner 2011 The New Atlantis 134-139.
110 Hart Essays on Bentham: Jurisprudence and Political Philosophy (1982) 162.
111 Sterner 2011 The New Atlantis 134-139.
112 Ibid.
113 United Nations Human Rights Council The Promotion, Protection and Enjoyment of Human Rights on the Internet (2016).
114 Cerf "Internet Access Is Not a Human Right" (2012-01-04) New York Times.
115 Ibid; Papadopoulos and Snail Cyberlaw@ SA III: The Law of the Internet in South Africa 251.
116 Hart Essays on Bentham: Jurisprudence and Political Philosophy Ch 5.
117 Campbell https://plato.stanford.edu/archives/win2017/entries/legal-rights/.
118 S 16(3) of the Consumer Protection Act 68 of 2008.
119 As discussed previously in this article.
120 Ss 24, 26, 27 and 29 of the Constitution of the Republic of South Africa,1996.
121 Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC).
122 Penney 2011 38 Wm Mitchell L Rev 18; Papadopoulos and Snail Cyberlaw@ SA III: The Law of the Internet in South Africa 276.
123 Papadopoulos and Snail Cyberlaw@ SA III: The Law of the Internet in South Africa 276.
124 Dahlberg "Cyber-Libertarianism 2.0: A Discourse Theory/Critical Political Economy Examination" 2010 6 Cultural Politics 331 336.
125 Penney 2011 38 Wm Mitchell L Rev 18.
126 Penney 2011 38 Wm Mitchell L Rev 17.
127 Sterner 2011 The New Atlantis 134.