In the age of globalization, the Internet is practically becoming the main tool for the realization of the human right to freedom of speech. Therefore, it is important to talk about the legal regulation of access to the Internet, according to ICT expert Asomiddin Atoev and lawyer Khurshed Kurbonshoev.
The Internet, the World Wide Web, has long been a publicly accessible global tool that provides enhanced opportunities for the realization of human rights. It is interpreted as information and communication networks or a worldwide system of interconnected computer and communication networks for creating, processing, storing and transmitting information. Moreover, being interoperable, the system is open to new digital networks and gadgets that can easily be connected to the Internet.
The Internet has long been recognized as the main foundation for the development of the information society. However, so far, even in international law there is no clear legal definition of the Internet as a cyber-physical system.
UN structures and mechanisms, as well as other international organizations that establish principles or standards of state regulation of cyberspace, in their documents mainly use such terms as “information and communication technologies” (ICT), “next generation networks”, “global network”, “cyberspace”, etc., which separately cannot give out the whole essence of the Internet characteristics. In such a definition of the legal concept of the Internet, when only its technical characteristics are described, the social importance of the Internet is reduced.
In other words, it is necessary to regulate certain relationships arising in this environment at the legal level. In particular, it is necessary to prevent blockages and restrictions on access to the Internet as a method of regulation.
For example, it is not necessary to block access to the Internet as a whole because of certain Internet resources that distribute undesirable or illegal content. In such cases, it is sufficient within the limits of the law to block only the offending resources.
The legal concept of the Internet in the countries of Central Asia
Of all Central Asian countries, only Kyrgyzstan uses the legal definition specified in the Model Law of the CIS countries “On the basics of Internet regulation”, developed in 2011. Note that all these definitions do not cover the full characteristic of the Internet as an open platform contributing to social progress, but only describe the technical qualities in a narrow form.
These definitions are compared with the expanded definition of the Internet provided by the US Federal Network Council in 1995 below (Table 1).
The Right of Access to the Internet in Central Asia – A Comparison of Internet Definitions
The Internet is often equated with the mass media. However, it is worth distinguishing these two concepts here, since the “Internet” is a transport and a tool for receiving, finding and disseminating information. “The Internet is more of a “way of transmitting information” type of media that is interactive and instantaneous and allows the decentralized distribution of user-generated content that is not necessarily controlled by an editor, like content in print newspapers or broadcast television. Poor and incomplete Internet access widens the digital divide within and between developed and underdeveloped societies.
The Internet is the most important asset of society and providing access to it is an important issue, and the Covid-19 pandemic is proof of that. For example, the move to distance learning has helped pupils and students keep up with the curriculum, online ordering of food, medications and other necessities, also spreading information about ways to protect themselves and sharing experiences in fighting the coronavirus has helped minimize all the risks that exist.
Also, the COVID-19 pandemic showed how important it is to have access to the Internet to keep up with development in all areas, especially in the face of worldwide quarantine. During the pandemic, the Internet established a secure mode of communication that supports the vitality of all industries, from education to the economy.
There is still no clear legal regulation of Internet access, despite the fact that from the high podiums of the UN it has been voiced and recognized that Internet access is a fundamental human right.
The UN Human Rights Council has recommended the recognition of human rights as equal in both offline and online space. However, the UN resolutions are not legally binding, so countries treat digital rights differently, and so far no single international treaty that regulates Internet access as a human right has been adopted. Thus, a number of states, including Central Asian states, are reluctant to accept this fact. Although the laws of CA countries prescribe cases of restriction of Internet access.
Unfortunately, this piecemeal approach to regulating Internet access and other rights exercised on the Internet leads to non-compliance with the basic norms of international law and the infringement of digital human rights in the CA countries.
It is necessary to understand that the Internet is no longer a classical means of communication but a dynamically growing multimedia environment with broader possibilities for the realization of a number of human rights.
In addition to receiving, seeking and disseminating information, the Internet also intertwines such fundamental human rights as the right to work, the right to education, the right to entrepreneurship, the right to create, freedom of speech and expression, etc. If states do not provide, at a minimum, legal regulation of access to the Internet and, at a maximum, recognize it as an inalienable and constitutional human right, then it will be too early to talk about the development of a full-fledged information society. Every unreasonable restriction of Internet access may result in the violation of a set of human rights.
Given the open nature of the Internet, and realizing that it can also pose risks, i.e. create opportunities for cybercrime (violation of human rights in general, including piracy, violation of copyright and other intellectual property rights, hacking and identity theft, spread of terrorist and extremist ideas), a strict balance must be struck between ensuring security (based on the principles of necessity and proportionality) and maintaining the principle of transparency and predictability in the provision
Necessity and proportionality are the basic criteria for the law in a democratic society. These criteria are important factors for the successful use of the possibilities of the Internet, both to strengthen democratic principles in the country and to increase the competitiveness of the domestic economy at the global level.
Each intermediary, domestic or foreign, can contribute to the availability of not only products (information, software, virtual), but also services both for imports into and exports from the country. Compliance with the aforementioned criteria helps to reduce unreasonable restrictions on access to the Internet, which are aimed at protecting the interests of certain agencies to the detriment of national ones.
In CA countries one can observe separate attempts at legal regulation of access to the Internet. For example, in Turkmenistan, a law on legal regulation of Internet development was adopted, which defines the policy of the state with regard to providing access to the network.
In the countries of Central Asia one can observe separate attempts at legal regulation of access to the Internet. For example, Turkmenistan has adopted a law on legal regulation of Internet development, which defines the policy of the state with regard to providing access to the network.
According to this policy, the state should ensure universal and equal access to the Internet by creating and supporting infrastructure of state and non-state structures, as well as providing privileges when providing Internet services to socially vulnerable segments of the population, developing infrastructure services for Internet access in rural, remote and hard-to-reach areas of Turkmenistan.
However, the practical implementation of the above norms in the country is not always ensured by the rule of law. According to media reports, the problem of ensuring Internet access existed before, but with the arrival of the new President Serdar Berdymukhamedov, blockages and restrictions on Internet access have only intensified.
“Now instead of blocking individual IP addresses, which numbered in the tens of thousands, the Internet in general is blocked, but allowed “holes” are left in it in the form of individual, loyalty-tested sites.”
Online access initiatives can be cited as such examples. In the age of digitalization, Central Asian states are trying to keep up with other countries, for example, in the provision of public services in a digital format.
Kazakhstan has a fully functioning e-government, and Uzbekistan, Tajikistan, Turkmenistan and Kyrgyzstan have adopted sufficient regulations to digitally transform government services. However, it is worth bearing in mind that without ensuring Internet access for the entire population and network neutrality (the principle that Internet service providers should give everyone the same right to access the Internet), such projects lead to a “digital divide.
At the same time, the level of Internet penetration in the CA countries for 2021 is:
Kazakhstan -81.90%
Kyrgyzstan -50.40%
Uzbekistan -55,20%
Tajikistan -34,90%
Turkmenistan – 33,20%
One of the reasons for such a digital divide between countries, experts believe, is non-discriminatory or even sometimes chaotic disconnection of the Internet and limiting the speed of data transmission. States, as practice shows, usually justify this action by ensuring public order and information security.
Such disconnections contribute to socio-economic and political harm, which will ultimately prove disproportionate and lead to negative side effects. The economic costs can be the disruption of financial transactions, disrupting trade and industry while worsening existing social and economic inequalities.
The issue of pricing also has a significant impact on limiting access to the Internet. For example, in Central Asian countries the cheapest Internet access is for residents of Kyrgyzstan ($0.6 per 1GB) and Kazakhstan ($0.8 per 1GB), in Uzbekistan it is slightly more expensive ($1.3 per 1GB), while residents of Tajikistan ($3.5 per 1GB) and Turkmenistan ($17.5 per 1GB) pay the most.
Given the importance of providing access to the Internet and the recommendations of the UN Human Rights Council, states need to:
– Regulate Internet access at the legal level;
– recognize Internet access as a basic human right;
– Encourage and assist in narrowing the digital divide and compliance with net neutrality;
– provide citizens with a guarantee of redress against unreasonable restrictions to Internet access.
If states do consider authorizing or implementing shutdowns, they must strictly adhere to the following six basic requirements. Any disconnections of the Internet must:
- Be clearly justified in unambiguous, publicly available law, subject to the principles of predictability and transparency;
- Be necessary to achieve a legitimate aim, as defined in human law, respecting the principles of necessity and proportionality;
- Be proportionate to the legitimate aim and be the least inclusive means of achieving that aim; accordingly, they should be as limited as possible in duration, geographical coverage and affected networks, and services;
- Be subject to prior approval by a court or other independent judicial authority to avoid any political, commercial, or other undue influence;
- be announced in advance to the public and to telecommunications companies or Internet service providers with a clear explanation of the legal basis for the disconnection and details as to its scope and duration;
- Provide for meaningful mechanisms of redress available to those whose rights have been affected by disconnections, including through legal proceedings before independent and impartial courts; legal proceedings should be timely and provide for the possibility of obtaining recognition of the illegality of disconnections carried out in violation of applicable law, even after the disconnection in question has ended.
Given national interests, states should have an interest in providing the public with timely and detailed information about any restrictions on Internet access that they may impose, including bandwidth regulation, restrictions on access to certain communication services and platforms, or blocking of virtual private networks. Moreover, states should not prohibit, block or criminalize the use of encryption or circumvention tools or specific communication channels, such as virtual private networks, but rather should grant access to these tools to ensure the protection of citizens’ rights, including the protection of personal data.
To conclude, we would like to note again that the right of access to the Internet is an inalienable human right, with its own content, which must be ensured by states, as it itself ensures the realization of the right and other rights and freedoms of citizens. Given the speed with which changes in the development of society occur, through the use of ICTs, it is important to respect the interests of all parties, both citizens and the state, to implement and ensure the protection of rights and freedoms. At the same time, it will be necessary to establish the right of access to the Internet through the definition of specific opportunities, negative and positive obligations imposed on states, as well as on organizations engaged in activities related to the Internet.
Today the Internet is an integral and important part of human social life. Restricting access to it reduces the ability of a person to take an active part in the life of society. In this connection, the question of the need to establish the right of access to the Internet as a fundamental human right, such as the right to life, the right to information or freedom of movement, is relevant.