Last month, the Government of Malta published a White Paper for public consultation, proposing the introduction of four so-called “digital rights” in the Constitution of Malta. The proposal is indeed a step in the right direction but lacks punch where it matters most.

The proposed digital rights are the following: (1) the right to Internet access; (2) the right to informational access; (3) the right to informational freedom and (4) the right to digital informational self-determination. Put briefly, the White Paper proposes that such rights be included within Chapter II entitled “Declaration of Principles” of the Constitution of Malta, in other words as mere declaratory, non-enforceable “rights”.

While the government’s efforts are commendable, the White Paper is riddled with misconceptions and does not go far enough.

The notion of human rights: Beyond perceptions

The White Paper unfortunately bundles the so-called “right to Internet access”—on which there has been extensive academic debate as to whether it should even be recognized as a legally enforceable right (let alone a fundamental human right)—with the other three “digital rights” which have a human rights pedigree, being facets of or closely linked with the fundamental human rights to freedom of expression, freedom to receive and communicate ideas and information, and the right to privacy and informational self-determination.

The White Paper discusses whether access to the Internet is a fundamental human right. A curious—and rather dangerously demagogic—argument is made in the White Paper based on what it calls “the people’s perception”. Basing itself on a 2010 BBC (UK) survey, the White Paper argues that there seems to be a widespread perception in the general public that “fundamental human rights play a part in the discussion” whether access to the Internet is a human right and that indeed, “it would be politically inadvisable to ignore this perception” because “the people have so dictated” (p.7). This perception, the argument continues, is bolstered by “(1) the sense of liberty which the Internet itself has promoted, coupled with (2) the people’s broad interpretation of their existent fundamental rights and (3) their limited understanding of Internet governance and regulation” (p.8). Indeed, the White Paper continues, this perception “can only grow stronger” and “indeed evolving into an expectation that access to the Internet should be recognized as a right if not a fundamental human right” (its emphasis, p.9). The same argument that fundamental human rights play a part in this discussion “because the people have so dictated” is repeated on page 11 of the White Paper.

I disagree strongly with this argument. Technology is an enabler of rights, not a human right itself. What gives certain basic—indeed fundamental—rights the status of human rights is not the fact that “the people” have such a “perception” which then develops into an “expectation”. It is the fact that certain rights are inalienable rights to which each human being, by virtue of being a human being, is inherently entitled. This is a high bar and, as Vinton Cerf puts it, “it is a mistake to place any particular technology in this exalted category, since over time we will end up valuing the wrong things.” Indeed, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, though recognizing that “the Internet has become an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress,” stopped short of declaring that access to the Internet is itself a human right, but encouraged states to consider “ensuring universal access to the Internet should be a priority.” (para. 85).

In spite of the abovementioned criticism of the demagogic undertones in the White Paper, it is however laudable that the Maltese Government considers universal access to the Internet to be a priority issue for Malta, both through government policies and by itself taking and encouraging the private sector to take the necessary infrastructural measures. The discussion whether this should also be done through the enactment of a legally enforceable (though ordinary) right to Internet access is also timely.

Rights to receive information and freedom of expression already exist

Freedom of expression and the right to receive information are already protected as legally-enforceable human rights in the Constitution of Malta. Moreover, article 41 of the Maltese Constitution is technology-neutral. Its first sub-paragraph provides, in clear and unambiguous terms that: “Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence”. Thus, the right to freedom of expression, including the freedom to receive information and ideas, is not dependent or conditional on the type of medium used to exercise or enjoy this fundamental human right. The manner in which Article 41 of the Maltese Constitution is drafted is broad enough to encompass new technologies and new media. There is thus no need for repetition, especially through some declaratory provisions in the Constitution which are not enforceable. Such rights already exist: what holds offline, holds online.

The proposed right to digital informational self-determination and privacy

The fourth proposed right is the most interesting, though it does not go far enough. The White Paper proposes the introduction of the following provisions: “The State recognizes and shall promote and protect a culture of informational self-determination and privacy of the individual on any form of information and communication technologies, including electronic communications networks, and shall take such appropriate measures to eliminate any unnecessary restrictions thereto that are justifiable in a democratic society.”

However, the White Paper seems to have gotten the wrong end of the stick. The right to privacy, though recognized at a European and international level as a fundamental human right, is not a constitutionally enforceable right in the Maltese Constitution. The Constitution of Malta, in section 32(c), does recognize that “every person in Malta is entitled to the fundamental rights and freedoms of the individual” including “the right ... to respect for his private or family life”. However, section 32 is not an enforceable section. It is merely declaratory. Indeed it is the only section in Chapter IV of the Constitution entitled “Fundamental Rights and Freedoms of the Individual” which is not enforceable before a court of law. Nor is the right to privacy elaborated further in any of the subsequent and enforceable human rights provisions in the Constitution. However, the right to privacy is recognized as a fundamental human right in the European Convention Act, section 8(1) of which reads: “Everyone has the right to respect for his private and family life, his home and his correspondence.” However, it is important to highlight that while the fundamental human rights provisions in the Maltese Constitution are entrenched and thus require a two-thirds majority vote in Parliament for their amendment, the European Convention Act, like any other ordinary piece of legislation, may be amended or repealed by a majority vote in Parliament.

It is commendable that the Maltese Government sees the need of recognizing and promoting a culture of informational self-determination. However, it would be more effective if this were done through a legally enforceable and constitutionally entrenched right. The right to informational self-determination is, as the Federal German Constitutional Court in the famous 1983 Census Case stated, the individual’s right “to determine for himself whether his personal data shall be disclosed and utilized.” It is inextricably linked with the inviolability of human dignity and the individual’s right to the free development of his personality insofar as he or she does not violate the rights of others.

It is thus high time that the right to privacy and the right to informational self-determination are enshrined as an enforceable and entrenched right in the Maltese Constitution. What we do not need is another declaratory provision in the Maltese Constitution, let alone one which is tied only to information and communication technologies. Such a right should be technology-neutral, apply offline as well as online, and constitutionally entrenched and enforceable.

Tailpiece: A hotch-potch of Internet governance, regulation and jurisdiction

The White Paper makes an unfortunate sweeping statement when it claims in one fell swoop that “the Internet is regulated and governed” (p.8). It does recognize that there is a difference between the notions of “Internet governance” and “Internet regulation” and indeed states that entering into a discussion on such a distinction is beyond the scope of such document. However, it then states that “[t]he idea that Internet is an unregulated sanctum emanates from an old school of thought that sought absolute independence from earthly laws [sic] for citizens of cyberspace. Such a concept has long been defeated because the Internet is regulated and governed.” Indeed. Such sweeping statements ignore the chequered history of Internet governance, the role of ICANN, the WSIS multi-stakeholder approach to Internet governance, and so much more. They also overlook the difficulties of applying traditional legal notions of jurisdiction and enforcement to cross-border acts (which could be criminal or civil in nature) and transactions.

Further on, the White Paper states that these four proposed “digital rights apply across borders, apply to individuals but also businesses, while posing an obligation on the State to take appropriate measures to eliminate any unnecessary restrictions to such rights that are not justifiable in a democratic society.” (p. 23). While forgetting for a moment that, being declaratory in nature, the proposed digital “rights” do not impose any obligation on the state, the White Paper seems to be claiming that such rights will have extra-territorial application. The wording used is unfortunate because it gives the impression that the White Paper is overlooking the basic notion in public and private international law that a state can, in principle, only legislate for matters that occur or have an effect on its territory or citizens. If a statute is to have effect beyond Maltese borders, this must emanate from the provisions of some international treaty that both Malta and the other sovereign state are parties to.