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Right of access to the internet in Europe, France and the United States

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Right of access to the internet in Europe, France and the United States
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    RIGHT OF ACCESS TO THE INTERNET IN EUROPE AND IN THE UNITED STATES *** The internet has become today a necessary tool in our every day life and administrations now use it for their relations with people. It has also become necessary for compagnies to use and to be present on the internet. Today’s economy cannot live without the internet, but is there such a thing as a right to the internet ? In the USA there is no such right. However, there is a universal service for telecomunication dating back to 1934 which has been strenghtened by the 1996 telecomunication Act. The latter holds that the State must give access to telecomunication means throughout the nation. The conception of telecomunication is wide and the 1996 Act also hints at internet. The Act held that the internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development and myriad avenues for intellectual activity (sec 230 (a) (3)). This consideration is very close to the French view since the Conseil Constitutionnel held that the Hadopi Act was contrary to the Constitution because it went against the freedom of speech protected by section 11 of the Déclaration des droits de l'Homme et du citoyen 1 . France has now got a right of access to the Internet (1) and the European Union has adopted a universal service regulation on telecommunications (2) which create a regulation for the access to the Internet. The United-States have no right of access to the Internet but they have a  plan to give access to the Internet nation-wide (3).  1.   The limit to the right to internet in France First of all a distinction should be made between a fundamental right and a human right. Human rights are an antic concept since it is considered that the Cyrus Cylinder was the first written document that stated human rights. However this conception, adopted by the United  Nations, has been rejected by some scholars and by its owner the British Museum.  Nevertheless the concept of human right is quite old since the first European written document upon on the issue date back to the “Habeas Corpus” in the 17 th  century. In France the 1789 Déclaration des Droits de l'Homme et du citoyen declared imprescriptible and universal human rights. On the contrary fundamental rights are created by a Constution, an international treaty, by a court's decision or by the law-maker. The distinction between both categories is that the latter depends upon the historical and the local context. Fundamental rights are made to give the  possibilities and opportunities to the citizens to be integrated into the economic environment. Though this conception seems to be too far fetched it is to be underlined that fundamental rights are less universal than Human Rights and they could therefore be canceled. In France an important debate took place upon the definition of the access to the internet as a fundamental right when the Hadopi bill was discussed. Indeed the secreteray of State for culture stated that considering access to the internet at home as a fundamental right would go too far since citizens can easily have access to the internet 2 . However the Conseil Constitutionnel took position on this issue in a decision on June 10 th , 2009. In this decision it held that the Internet is necessary for the freedom of expression which is protected by the Déclaration des droits de l'Homme et du citoyen, and it is a necessary tool in order to respect democracy. Moreover Internet is necessary to have access to services of communication to the public online. The Conseil held that it was a fundamental right to have access to the Internet at home and not merely in an Internet point or at work. Therefore the Conseil Constitutionnel held that access to the Internet is a fundamental right  because it enables people to exercise their right of expression which is a Right of Man. This shows the difference between the fundamental right and the Right of Man since the former can be a mere tool in order to be able to exercise the latter. However this case should be read in its context since the Hadopi bill was very much criticized both at national and at European level. By considering that Internet is only a mean to enjoy the freedom of expression the Conseil Constitutionnel reduced the scope of this fundamental right.   Indeed, the right of expression as held in this vague decision may be respected with a very slow connection or with a limited access to the internet which would impede users to talk, see  pictures, movies or listen to some music on the internet. Indeed, a compagny, has put on the market a connection linked with a satellite which only allows users to have a limited access to the internet and only to websites and emails since it is possible to use 2GB for  ! 34,90 ($48,59) by month 3 . Such a high price and such a low standard for the access to internet actually reduces the scope of the right to have access to internet. The definition of the right of access to the internet is actually the narrowest possible and we could even wonder whether it is actually effective. After having witnessed the revolutions in the Arabic world we can actually wonder whether such a narrow definition is really sufficient in order to satisfy the right to expression, since these revolutions used all the means given by the internet in order to express their revendications. 2.   The European universal service of internet The European commission used to the concept of universal service from the end of the 1980’s (following the European Single Act), in the context of harmonization of the European telecommunications market, in the fields of post office and more recently of electricity. The concept has been implemented sector by sector. The definition of the concept of universal service has significantly evolved since its official European consecration in the Communication of September 20, 2000 which holds “The definition and guarantee of universal service ensures that the continuous accessibility and quality of established services is maintained for all users and consumers during the process of passing from monopoly provision to openly competitive markets”. The Green Paper of May 21st, 2003 on the services of general interest says that “Universal service is a dynamic concept. It ensures that general interest requirements can take account of political, social, economic and technological developments and it allows these requirements, where necessary, to be regularly adjusted to the citizens’ evolving needs“. A clear definition was given by the Corbeau case held by the European Court of Justice 4 . It was held that article 90 of the European Community treaty allows members States to give the  possibility to compagnies to benefit from exclusive rights if in charge of services of general economic interest, which may amount to an obstacle to concurrence in case this would reveal to be necessary in order to ensure the mission that was confered upon these compagnies. In the European Union one of the main objectives since the European Conference in Lisbonna in 2000 was to develop the accessibility to the internet throughout the European territory in  order to fill the gap between the have and the have nots and in order to develop the economy. This was to be done through the eEurope plan. One of the main purposes was to give access to the internet in all schools throughout the European Union in order to teach children how to use it. The same incentive blossomed in the United States, and it shows the importance of having people know how to use this tool both for their freedom of expression as a right of man and for their capacity to be integrated in modern economies. In the Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) held at recital 8 that 'connections to the public telephone network at a fixed location should be capable of supporting speech and data communications at rates sufficient for access to online services such as those provided via the  public Internet'. However there is no real harmonization as to the bit rate 5  because it depends on several factors such as the technology used and therefore requiring an harmonized techonology would be a high burden for the poorest countries in the European Union. However such differences may amount to a limit to the access to the internet and may reduce the scope of the freedom of expression in the poorest countries. However this universal service directive did not go far enough since an important part of the European population still does not have access to the internet. Therefore in a 2009 directive upon telecomunications 6  it was held in article 4 that the connection provided shall be capable of supporting voice, facsimile and data communications at data rates that are suffificent to  permit functionnal access, taking into account prevailing technologies used by the majority of suscribers and techonlogical feasibility. Therefore the conception of universal service has evolved toward a better quality and a higher standard. Nevertheless member States are allowed a margin of interpretation which may be important because of the vagueness of this section. It is to be concluded that there is no real European standard and that the evolution toward a better quality may be quite limited. The main evolution is that the connection should not be limited to a use for emails and websites only but should also include voice, which is an important element in the freedom of expression. Moreover the standard is the connection most users have. This standard may enable rural areas to benefit from a better internet access since the European population is mostly city dwellers and therefore have access to high standard connections. It is thus to be concluded that this standard of the majority of suscribers will  push the standard upward since technologies accessible in large cities are always improving thanks to the competitive markets. The European Parliament adopted an amendment 46 to the Telecom directive which holds that applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information. Therefore the European Union decided that access to the internet is a fundamental right. The amendment held however that only a judge can decide upon its limits. The approach is the same as the one adopted by the French Conseil Constitutionnel since the access to the internet is not considered by itself as a fundamental right but as a mean  to exercise a human right. However the decision on this ground is surprising since the Charter is not enforced in the United Kingdom and in Poland. Therefore such an argumentation may  be criticized in both these countries but it may also amount to a mean to impose the human rights held in the charter in both England and Poland. Access to internet is considered as a fundamental right in the European Union because it is a mean to exercise Human Rights. Nevertheless the European Union only stated a principle which leaves room for interpretations either for the law-maker or for judges. Moreover the European Union does no fund the creation of internet facilities and therefore poorer countries, which have less access to the internet, have less fundings to give effective access to the internet. Anyhow this principle shall be a cornerstone of Europe's future social and economic development. 3.   The universal service in the United States The concept of “universal service” appeared in the United States at the beginning of the 20th century at the initiative of AT&T, the dominant private operator of telecommunications, with the aim to consolidate its monopoly. The Telecommunications Act of 1996 held that the internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development and myriad avenues for intellectual activity (sec 230 (a) (3)). Then in early 2009, Congress directed the Federal Communications Commission (FCC) to develop a National Broadband Plan to ensure every American has “access to broadband capability.” Congress also required that this plan include a detailed strategy for achieving affordability and maximizing use of broadband to advance “consumer welfare, civic  participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, employee training, private sector investment, entrepreneurial activity, job creation and economic growth, and other national  purposes” 7 . The purpose is to create within 10 years a broadband accessible everywhere in the country which would reach up to 500 megahertz and within 5 years a 300 megahertz network should be accessible for mobile connections. In order to reach this goal the United States have created two different funds : the Connect America Fund which would amount up to $15,5  billions over the following decade from the existing Universal Service Fund and the Mobility Fund. The first will focus on giving broadband access to remote areas where private operators
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