In an interesting blog post, the Chartered Institute of IT commented that given the increasing view that access to the Internet is a fundamental right, does the Digital Economy Bill infringe users right to freedom of expression, or more particularly, a right “to communicate”? Conceiving of it as a right to communicate highlights each aspect in a communicative act as a right in and of itself: a right to speak (utter, print, distribute), and receive (read, think, inquire) information. And the interactive environment of the Internet, and our increasing dependence on it (thus the argument that access is a fundamental right), only serves to further highlight the importance of each of these acts in the communicative process. Jennifer Chandler has written an excellent article on this, arguing that that the rationales for free speech protection all revolve around protecting “the communicative aspect of speech”, which includes the right to reach an audience. In Europe, while the right to speak has been more clearly engaged by the ECHR, the status of the right to access information is less clear, with the Court in Guerra v Italy conceiving of the right as only a negative duty on the State not to interfere with communications between individuals, rather than a positive duty on the State to ensure that individuals have access to the information in question.
So where does that leave the Digital Economy Bill? While a complex analysis of the human rights implications of the three-strikes law is beyond the goal of this blog post, what can be said is that the three-strikes law raises significant issue concerning how we conceive of the right to freedom of expression in the digital age. In the digital age, the right to freedom of expression might be the right to communicate, and if so, the three-strikes law risks being a disproportionate interference with this right. As discussed in an earlier post concerning Article 1(3)a of the Framework Directive, the European Parliament has signed-off on a three-strikes law: by emphasizing judicial review based on ECHR principles, it is simply saying that care must be taken in the structure of the institution that will regulate the law, without providing any further guidance on what that entails.