While there appears to be no express right of general application to ‘access cyberspace/the Internet’ stipulated in any of the major international human rights instruments, it has been argued at the international level that such access is critical, particularly in terms of the right to freedom of expression, and in the redressing of structural disadvantage. Accordingly a number of countries have, in varying forms, formally recognised human rights to access the Internet. These trends are considered below, along with developments within the Australian context.
8.1 At the international level
The Special Rapporteur argues that without Internet access ‘which facilitates economic development and the enjoyment of a range of human rights, marginalized groups and developing States remain trapped in a disadvantaged situation’. This has been characterized as the ‘digital divide’, being ‘the gap between people with effective access to digital and information technologies, in particular the Internet, and those with very limited or no access at all’. The Special Rapporteur asserts the positive obligation on States to ‘promote or to facilitate the enjoyment of the right to freedom of expression and the means necessary to exercise this right, including the Internet’ as a means of overcoming this divide.
According to the Special Rapporteur, access to the Internet is seen as critical to combating situations of inequality, by ensuring that marginalized or disadvantaged sections of society can express their grievances effectively and that their voices are heard. He argues that the Internet ‘offers a key means by which such groups can obtain information, assert their rights, and participate in public debates concerning social, economic and political changes to improve their situation’. It also offers an important educational tool in making accessible previously unaffordable academic material to people in developing countries.
However, the Special Rapporteur acknowledges that disadvantaged groups ‘often face barriers to accessing the Internet in a way that is meaningful, relevant and useful to them in their daily lives’.
One academic, Cees Hamelink, argues that if the right to freedom of expression is interpreted in more than the classical negative sense (that is, as a ‘positive right’ and not merely as a liberty), it becomes a ‘claim-right’. This means a person not only has the right to express opinions, but also, by implication, to the related entitlement to facilities for the exercise of this right. The recognition of freedom of expression as a positive claim-right is particularly important in situations where the voices of some people are systematically excluded.
Mr Hamelink further argues that human rights in cyberspace should not only be articulated as individual rights, but also recognised as collective rights. A collective right of access to the Internet for communities, he postulates, is critical given that there are certain groups of people who tend to be excluded from full access to the Internet (he mentions women, ethnic minorities and lower socio-economic groups). He argues that collective claims can also include the right to development (of communication infrastructures), and a right to the sharing of knowledge and skills resources.
The recommendations of the United Nations 2003 World Summit on the Information Society reflect the need for specific attention to be given to vulnerable groups. The Plan of Action adopted at that Summit included that States ‘promote research and development to facilitate accessibility of ICTs for all, including disadvantaged, marginalized and vulnerable groups.’ It was proposed that:
national e-strategies address the special requirements of older people, persons with disabilities, children, especially marginalized children and other disadvantaged and vulnerable groups, including by appropriate educational administrative and legislative measures to ensure their full inclusion in the Information Society.
‘Full inclusion’ would extend beyond mere access rights, and would include initiatives to build confidence and security in the use of the Internet. In practice, this could include Governments establishing ‘sustainable multi-purpose community public access points’ and providing affordable or free Internet access to their citizens.
Practical developments at the international level in respect of the ‘right to access the Internet’ include, as part of the Millennium Development Goals, a formal target calling upon States ‘in consultation with the private sector [to] make available the benefits of new technologies, especially information and communications’. Other initiatives include:
- the ‘One Laptop Per Child’ project (supported by the United Nations Development Programme), which aims to spread the availability of the Internet into developing countries (currently this is being progressively implemented in countries such as Uganda and Rwanda)
- the Indian Government’s ‘public-kiosks’ program
- the Brazilian government’s ‘computers for all’ program offering subsidies for the purchasing of computers.
The Special Rapporteur has reported that Internet access has been expressly recognized as a human right in some economically developed States:
For example, the parliament of Estonia passed legislation in 2000 declaring Internet access a basic human right.52 The constitutional council of France effectively declared Internet access a fundamental right in 2009, and the constitutional court of Costa Rica reached a similar decision in 2010.53 Going a step further, Finland passed a decree in 2009 stating that every Internet connection needs to have a speed of at least one Megabit per second (broadband level).
8.2 At the domestic level
Within the Australian context, the Commission has developed World Wide Web Access Advisory notes which provide guidance on the requirements for compliance with the Disability Discrimination Act 1992 (Cth) The Advisory notes provide important practical information on how to make websites more accessible to people with a disability who, like the rest of the community, rely increasingly on the Internet to access a wide range of often critical information and service provision. The notes also provide information about how web designers and website owners can minimise the possibility of disability discrimination.
The Commission has also considered the right to Internet access in the context of older people in its submission to the Joint Select Committee Inquiry into Cybersafety for Senior Australians. The Commission submitted that ‘due to the speed with which the information technology revolution has occurred, many older people in Australia had found themselves on the wrong side of the digital divide’.
Internet access to essential services and social networking potentially provides older people with the option to live autonomously in their homes for longer. Yet many older people, particularly those aged 65 and above, missed the information technology agenda that is now part of mainstream education, resulting in a lack of confidence to engage with the Internet at a high level. This can preclude their ‘full inclusion’ in accessing mainstream information technology and in making independent decisions about their lives. The social and economic consequences of the relative disadvantage experienced by older Australians in using the Internet has led Age Discrimination Commissioner Susan Ryan to characterize this disadvantage as a form of age discrimination.
Evidence from the Australian Institute of Criminology (AIC) indicates that older people in Australia have difficulties managing their online security, and that people over the age of 65 are more likely to be victims of online financial fraud than any other age group. The Australian Crime Commission has highlighted that organised criminal networks take advantage of new technologies to expand their reach, commit crimes from a distance, create the appearance of legitimacy and exploit the lack of clear jurisdictional authority. This in turn increases the threat and harm caused to the Australian community, particularly to older people who might be more specifically targeted.
As mentioned above, the Australian Government has ratified the European Convention on Cybercrime. Prior to ratifying the Convention, the Australian Government enacted the Cybercrime Legislation Amendment Act 2012 (Cth) (the Cybercrime Act), to ensure that Australian legislation meet all the requirements under the Convention (subject to certain reservations). The main objective of the Convention (and therefore the Cybercrime Act) is to pursue a common criminal policy aimed at the protection of society against cyber-crime, especially by adopting appropriate legislation and fostering international co-operation.
While the passage of the Cybercrime Act and Australia’s ratification of the Convention is an important step, it represents a largely reactive approach. To be truly effective, a preventative approach must also be undertaken of educating users on ‘cyber-safe’ practices when engaging with information technology. However, evidence suggests that despite some success, current Internet training arrangements for older people require more targeted initiatives to engage segments of the aged population who do not respond to current programs and schemes.
These issues of access, confidence and security do not just affect older people in Australia and people with disability, but can impact on people from culturally and linguistically diverse backgrounds, remote communities where ICT infrastructure is most deficient, and people from lower socio-economic backgrounds who cannot always individually afford access to these technologies.
In order to ensure that information is truly accessible to all people in Australia, government departments and/or private companies should audit online materials to ensure they are user-friendly for new Internet users; institute educative initiatives on the secure use of the Internet and increase opportunities for meaningful access to the Internet of marginalised groups. Only when these measures are in place can structural vulnerability be identified, ‘full inclusion’ be achieved and any notion of the ‘right’ to access the Internet be truly realised.
 Note however that articles 9 and 21 of the Convention on the Rights of Persons with Disabilities, expressly refer to access to the Internet for people with disabilities, including through the use of accessible formats.
 F La Rue, note 9, p 17.
 F La Rue, above, p 17.
 F La Rue, above, p 19.
 F La Rue, above, p 17.
 F La Rue, above.
 F La Rue, above.
 F La Rue, above.
 C Hamelink, Human Rights in Cyberspace, http://www.religion-online.org/showarticle.asp?title=283 (viewed 29 August 2013).
 C Hamelink, above.
 C Hamelink, above.
 C Hamelink, above.
World Summit on the Information Society: Plan of Action, note 166, para 10(c).
World Summit on the Information Society: Plan of Action, above, para 9(e).
World Summit on the Information Society: Plan of Action, above, para 10(d).
 F La Rue, note 9, p 17.
 See F La Rue, above, p 18.
 F La Rue, above, p 18 (citations omitted).
 Australian Human Rights Commission, World Wide Web Access: Disability Discrimination Act Advisory Notes, http://humanrights.gov.au/disability_rights/standards/www_3/www_3.html (viewed 29 August 2013).
 Australian Human Rights Commission, Submission to the Joint Select Committee on Cybersafety Inquiry into Cybersafety for Senior Australians (January 2002). At http://www.humanrights.gov.au/inquiry-cybersafety-senior-australians-2012 (viewed 29 August 2013).
 Australian Human Rights Commission, above, para 6.
 See, for example, The Hon S Ryan, Age discrimination and the internet-older people in the 21st century (Ruby Hutchinson Memorial Lecture, 14 March 2012). At http://www.humanrights.gov.au/news/speeches/ruby-hutchison-memorial-lecture-2012 (viewed 29 August 2013).
 S Ross and R G Smith, ‘Risk factors for advance fee fraud victimisation’ in Australian Institute of Criminology, Trends & issues in crime and criminal justice No.420 (August 2011). At http://www.aic.gov.au/publications/current%20series/tandi/401-420/tandi420.aspx (viewed 29 August 2013).
 Australian Crime Commission, Submission to the Joint Select Committee on Cyber-Safety Inquiry into Cybersafety for Senior Australians (2012), p 6. At http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=jscc/senior_australians/subs.htm (viewed 29 August 2013).
 Australian Crime Commission, above.
 See Explanatory Memorandum, Cybercrime Legislation Amendment Bill 2011 (Cth), para 1. At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4575_ems_ecca7d37-7fb2-4218-9837-da3ab80f531e%22 (viewed 29 August 2013).
 Explanatory Memorandum, Cybercrime Legislation Amendment Bill 2011 (Cth), above, para 3.
 See, for example, Australian Bureau of Statistics, ‘Computer and Internet use by People with a Disability’, 4429.0 - Profiles of Disability, (2009). At http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4429.0main+features100142009 (viewed 29 August 2013).