Very interesting news from the land of gallo pinto, the Costa Rican constitutional court (Sala IV) has declared that the Internet is a fundamental right in ruling 2010-012790. The case is actually a seemingly straightforward recurso the amparo (literally, writ of shelter, a measure against administrative abuses) which asks the Court to declare that the Costa Rican government has been late in some of the obligations arising from the Central American Free Trade Agreement (CAFTA). Under CAFTA, Costa Rica was under the obligation to break its telecommunications monopoly and to open up the mobile phone spectrum to third parties. The process was late, so the claimants asked for the government to be brought to heel, and requested that telecommunications regulators should open the mobile spectrum as soon as possible.

Most of the ruling is not particularly enlightening or constitutes a good read, unless you are interested in telecomms law and discussion of the obligations under CAFTA, and lengthy excuses from various government officials as to why there is some delay in the matter. What is interesting about this ruling is that tacked on at the end is a discussion about access to the Internet as a fundamental right. The context of the discussion seems rather out of place, and I strongly suspect that one or several constitutional magistrates were just waiting for one case roughly dealing with telecomms in order to include this paragraph. The discussion is that the Internet is so important nowadays that not having access to it can affect various other rights, such as access to government, freedom of expression, equality and many other fundamental rights. Therefore, access to the Internet should be equivalent to those rights. The entire relevant paragraph reads (translation mine):

“FUNDAMENTAL RIGHTS ABUSED. On this last point, it must be said that progress in the last twenty years in information and communication technology (ICT) has revolutionized human social environment. Without a doubt, it can be argued that these technologies have impacted the way humans communicate, facilitating the connection between people and institutions worldwide and eliminating the barriers of space and time. At this time, access to these technologies becomes a basic instrument to facilitate the exercise of fundamental rights and democratic participation (e-democracy) and social control, education, freedom of expression and thought, access to information and public services online, the right to interact with government electronically and administrative transparency, among others. Moreover, others have affirmed the fundamental right that covers the access to these technologies, in particular the right of access to the Internet or World Wide Web. In this regard, the Constitutional Council of France, in Case No. 2009-580 DC of 10 June 2009, declared Internet access as a basic right, when detached directly from Article 11 of the Declaration Rights of Man and Citizen of 1789. […] In this context of the information or knowledge society, it is imposed on public authorities for the benefit of the governed to promote and ensure in universal form, access to these new technologies. Based on the foregoing, the Constitutional Court concludes that the verified delay in opening the telecommunications market has not only violated the right enshrined in Article 41 of the Constitution, but also has affected the exercise and enjoyment of other fundamental rights such as freedom of choice of consumers as enshrined in Article 46, last paragraph, the constitutional right of access to new information technologies, the right to equality and the eradication of the digital divide (info-exclusion) -Article 33 of the Constitution- the right to access the internet through the interface that the user or consumer chooses, and free enterprise and trade.”

I have to admit that the end of the paragraph is not particularly clear, and the sentence structure is a bit belaboured, but I tried to convey the meaning in the translation. The idea is that lack of access to the Internet affects other rights, and this is quite an interesting concept. Considering that European countries, including the UK, are skirting with the concept of exclusion from the Internet because of copyright infringement, perhaps we could all learn from countries like Costa Rica, where the thinking is rightly that the Internet has become an integral part of citizenship.


cyberdoyle · October 2, 2010 at 6:16 am

good for Costa! I just wish the digital dinosaurs in Westminster would open their eyes before it is too late. Their extinction cannot be averted, but they are going to take the rest of digitalbritain with them at this rate.

Anne Peacock · October 3, 2010 at 9:11 am

Do you know of other national court cases in other countries that have made decisions similar to this one?

    Andres · October 3, 2010 at 9:40 am

    Only the French decision that I know of, but I seem to recall that there were others.

    Tor · October 3, 2010 at 4:22 pm

    Maybe this Finnish case is somewhat related.

Anne Peacock · October 3, 2010 at 10:12 am

thanks, footnote in the ITU development report 2010 states this however does not include Costa Rica:

Based on a survey of 27 000 adults in 26 countries carried out by BBC in 2010, around three-quarters of interviewees considered Internet

access as a human right (see…. Countries that have ruled that access to Internet is a human right for their citizens include Finland, France and Estonia.

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