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Rights to internet access in the EU
Rights to internet access in the EU
Hendrik Mildebrath and Harriet Kennedy, Members' Research Service
Summary
Reflecting the increasing importance of digital technologies for participation in all aspects of modern life, access to the internet has become essential for work, education, public services and democratic engagement. Despite this, disparities in the availability, accessibility and affordability of internet access persist across the European Union, raising questions about whether internet access should be recognised as a fundamental right or treated as a tool to exercise existing rights and freedoms. If a right to internet access is recognised, its implications will depend on both its legal basis and how it is formulated. While a purely negative right of access would require the state to refrain from interfering with people's existing access, a positive right would oblige states to take active measures to ensure connectivity, for instance, by investing in infrastructure or providing financial support to ensure affordability.
An investigation of the existing legal framework reveals that although restrictions on internet access have been found to violate the right to freedom of expression, in particular, a binding stand-alone right to internet access has not been recognised in international or European human rights law, nor derived from the Charter of the Fundamental Rights of the European Union. At secondary law level, the universal service obligations under the European Electronic Communications Code do not establish entitlements which can be claimed by individuals. However, in some EU Member States, internet access benefits from explicit constitutional or statutory protection.
Several policy options have emerged regarding a novel right to internet access, ranging from a limited right to use the internet without arbitrary restriction to a broader right to 'meaningful' connectivity. However, it is increasingly argued that it should include a positive and a negative dimension. The quality of connection required to fulfil such a right and the extent of states' obligations will depend on how the right is formulated and interpreted by courts and may be regulated through secondary legislation, rather than as part of the right itself.
Introduction
Over the last decade, the internet has become an essential part of everyday life for millions of Europeans. Accelerated by the COVID‑19 pandemic and the rise of generative AI models like ChatGPT and Claude, digital technologies are increasingly shaping how we work, learn, communicate and socialise. According to Eurostat, as of December 2025, 94.7 % of EU households have internet access. However, despite the fact that achieving internet access for all has long been a central objective at EU level, access to the internet remains unequal and the accessibility and quality of internet connection varies. Even when physical connectivity does not pose an issue, users remain vulnerable to issues such as censorship, arbitrary filtering, blocking and even complete internet shutdowns. These risks are compounded by the fragility and concentration of the EU's digital infrastructure. In this context, Europe's persistent reliance on non‑EU providers has been a cause of concern. Against this backdrop, calls for the recognition of a stand-alone right to internet access have resurfaced and gained traction, raising questions about how such a right would be legally justified and what it would entail. Would it merely limit states' abilities to interfere with people's access to the internet, or would it require them to provide the necessary ICT infrastructure to ensure internet access for all? If so, what standard of connectivity would be required?
Key concepts
A novel right to internet access may be grounded in different legal frameworks, including international human rights law, European human and fundamental rights law, and national constitutional law. Alternatively, a statutory claim to internet access could be recognised on a legislative basis. Each of these potential bases gives rise to distinct forms of legal protection. When compared to statutory claims or legislative entitlements, fundamental rights, recognised under national constitutions or in the Charter of Fundamental Rights of the European Union (CFR), occupy a superior position in the hierarchy of norms. Legislation that conflicts with them may be challenged before a court and struck down or rendered unenforceable. While legislative entitlements may allow an individual to bring an action against the relevant duty-bearer they do not carry the same constitutional weight. They may be set aside when they conflict with fundamental rights and are vulnerable to amendment or repeal through the ordinary legislative process. International human rights law sits outside of this pairing. Although formally binding against all states parties, human rights law treaties are often subject to weaker enforcement mechanisms and do not always impose immediate obligations on states. This is less so with the European Convention of Human Rights (ECHR), which is subject to binding judicial enforcement by the European Court of Human Rights (ECtHR) and recognised as part of the general principles of EU law under Article 6(3) of the Treaty on European Union (TEU).
Whether rights can be judicially enforced by individuals depends on the admissibility criteria of the relevant enforcement procedures and the nature of the protected provisions. Some provisions create an individual entitlement that people can directly invoke before a court to claim a specific benefit, service or remedy. They are often referred to as subjective rights. Other provisions do not create such an entitlement, but can nevertheless serve as a basis to challenge the constitutionality or legality of subordinate laws or their application. Depending on the specifics of the legal system, such review may be initiated by individuals or exclusively by institutional actors. In relation to justiciability, a further distinction to bear in mind is that between state obligations and individual rights. While some provisions may impose an obligation on the state to pursue a particular objective or implement a specific measure, this does not automatically translate into a legal right for individuals. Conversely, when individuals have a legal right to something, states generally have a corresponding obligation to safeguard that right in practice. This logic applies in the context of human rights, fundamental rights and statutory entitlements.
Regardless of their legal basis, a broad distinction is often drawn between positive and negative rights. Negative rights, such as the right to privacy and the right to freedom of expression, primarily impose duties of non‑interference on the duty-bearer. Positive rights, on the other hand, require the duty-bearer to take active steps to secure the conditions necessary for individual wellbeing, typically through the provision of goods and services like housing or healthcare. In reality, however, the line between these two categories is often blurred, and many rights have both a positive and negative dimension. For instance, both the ECtHR and the Court of Justice of the European Union (CJEU) have acknowledged that the right to respect of private and family life can result in a positive obligation on the state to adopt legal measures to protect it.
The practical implications of a right to internet access will depend on how it is defined and interpreted by courts. Understood narrowly, a positive right to internet access may only guarantee a basic connection at a fixed point. Understood more broadly, it may require states to ensure high levels of connectivity, affordable access and the availability of the equipment and training necessary to use online services effectively. Reflecting such a broad approach, some stakeholders have suggested that a right to internet access should not be limited to access to a network but encompass all elements required for meaningful connectivity.
Irrespective of how broadly it is defined, the recognition of positive right to internet access would impose more onerous obligations on the state than a negative right. A purely negative right to internet access would primarily impose duties of restraint on the state, protecting the freedom to self-procure internet access from disproportionate state interference through arbitrary blocking measures against certain websites, for instance. Conversely, a positive right to internet access would require the state to take active measures to ensure connectivity, e.g. by investing in infrastructure or regulating private actors. Any positive right to internet access is also likely to have a negative dimension, as the state's duty to guarantee internet access would be incoherent if it could simultaneously interfere with or restrict such access. This logic cannot be automatically applied to legislative entitlements, as their scope is often more clearly defined (protecting people from arbitrary disconnection) or also a positive right (requiring governments to ensure universal, affordable connectivity). Much of the current academic debate favours a hybrid model that prohibits unjustified restrictions and imposes some positive obligations to ensure meaningful access, while leaving the precise scope of those obligations to legislation and judicial interpretation.
Normative debate
The idea of a stand-alone right to internet access has been supported by academics and organisations, as well as several high-profile figures, including former president of the European Parliament, David Sassoli, United Nations (UN) Secretary-General, António Guterres, and UN High Commissioner for Human Rights, Volker Türk.
Those in favour of establishing a stand-alone right to internet access believe that it merits explicit protection due to its unmatched significance in modern society. They emphasise the increasing importance of internet access for accessing public services, such as e-government, and the need to guard against censorship and state control. They also note that internet access is a tool to exercise not only the right to freedom of information but also other (socioeconomic) rights, and that codifying a right to internet access would help to protect citizens against regulatory backsliding by legislators. Opponents of such an approach argue that internet access should be treated as a tool which facilitates the exercise of other fundamental rights rather than as a right in itself. Some commentators warn against the risk of 'rights inflation', while others contend that internet access cannot qualify as a human right because it is not inherent to human dignity. From a practical standpoint, critics question whether recognising a right to internet access would promote social and economic participation more effectively than existing socioeconomic incentives and EU initiatives. It has also been pointed out that the recognition of internet access as a right would create new challenges and impose potentially onerous and costly obligations on states.
Ensuring everyone has access to internet services has long been a central objective at EU level. This is reflected in the general objectives and targets set in the digital decade policy programme 2030. Although a stand-alone right to internet access has not been established on EU level, EU legislators have repeatedly engaged with the topic of internet access through secondary legislation and soft-law instruments. Digital communication services are included amongst the essential services listed under Article 20 of the European pillar of social rights, and internet access is addressed in several legislative obligations, including Articles 84 and 100 of the European Electronic Communications Code (EECC). While Article 100 aims to rein in national measures on accessing or using internet services that limit the exercise of recognised rights or freedoms, Article 84 obliges Member States to ensure universal internet access. Article 87(1) of the European Commission's proposal for a new Digital Networks Act (DNA) imposes similar obligations on States, requiring them to ensure an adequate level of internet access, without establishing a subjective right to connectivity.
Current legal landscape
The overview of the legal landscape presented below is based on an examination of the relevant international and EU rights protection frameworks, as well as the national protection available in Belgium, Germany, Greece, Estonia, Finland, France, Ireland, Italy, the Netherlands, Poland, Portugal and Spain.1 It distinguishes between (1) a negative right or freedom to connect to the internet and access online content and services without unjustified restrictions, (2) a general positive right to internet access, requiring the state to ensure an internet connection of a certain standard is universally available, including by providing a connection where individuals would otherwise have none (particularly important in rural areas), and (3) a targeted right to social welfare support for those in need.2 Although EU secondary legislation can only support a statutory claim to internet access rather than a fundamental right, it is placed before national constitutions, as it applies to all EU Member States and, according to the principle of primacy of EU law, prevails over conflicting constitutional provisions.3
Negative right to internet access: Defending against restrictions
International human rights law
The idea of a right to internet came to prominence in international human rights law in 2011, following a report from the UN Special Rapporteur on the promotion and protection of freedom of expression and opinion, Frank La Rue. However, no such right has yet been established. Instead, internet access has been recognised a tool for exercising other rights, particularly the right to freedom of expression. As defined in international and European law, freedom of expression includes not only the right to express your ideas but also the right to seek, receive and impart information. Internet access can be linked with both dimensions of this right. In his 2011 report, La Rue held that restrictions on internet access violate the right to freedom of expression under Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR), unless they are provided for by law and proportionate. This approach was subsequently reflected in a non‑binding resolution adopted by the UN Human Rights Council in 2016 and in the practice of the UN Human Rights Committee, the body responsible for monitoring the ICCPR's implementation. While recognising the link between freedom of expression and internet access, other UN treaty bodies have also linked internet access to states' negative obligations under other rights. For example, in general comment No 25 (2021), the Committee on the Rights on the Child noted that meaningful access to digital technologies can support children to realise the full potential of their civil, political, cultural, economic and social rights. Furthermore, states parties should not intentionally obstruct, or enable other actors to obstruct, the supply of internet connectivity, which 'can have the effect of hindering a child's access to information and communication'.
European human and fundamental rights law
In 2014, the Parliamentary Assembly of the Council of Europe affirmed that 'public authorities have a duty to ensure the effective enjoyment of the right to freedom of expression online'. Freedom of expression is protected by Article 10 of the ECHR and Article 11 of the CFR. While the ECHR is a Council of Europe Treaty and the CFR is an EU specific bill of rights, all EU Member States are bound by both instruments. Their implementation is overseen by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), respectively.
The ECtHR has consistently recognised internet access as an essential means of exercising freedom of expression. It has recognised that internet access has 'become one of the principal means by which individuals exercise their right to freedom to receive and impart information and ideas', and repeatedly found that measures blocking access to certain websites violated Article 10. The CJEU has also recognised the close connection between internet access and freedom of expression. In cases like Scarlet Extended and SABAM, it invoked both Article 8 (right to personal data) and Article 11 CFR to protect users from broad filtering or blocking obligations imposed on private service providers intended to prevent copyright infringements.
In the context of prisons, the ECtHR held that Article 10 ECHR does not impose a general positive obligation to provide prisoners with internet access. However, where internet access is made available, restrictions on access to particular websites must be justified. Applying similar reasoning under Article 2 of Protocol No 1, the Court found a violation of the right to education if prisoners were denied access to educational websites through facilities already available to them, without adequate justification or a proper balancing of competing interests. Although the CJEU has not examined restrictions on internet access in relation to prisoners' rights specifically, the relevant provisions of the CFR are likely to offer a similar level of protection. This is because Article 52(3) CFR stipulates that when a right is protected by both the ECHR and the CFR, the CFR must offer at least the same level of protection as the ECHR does.
EU secondary law
Although it does not create a right to internet access per se, EU secondary law also restricts the extent to which Member States can interfere with people's freedom to access services and applications through the internet. As the outcome of a highly controversial procedure, the 'internet freedom provision', Article 100 EECC, requires states not to impose measures restricting end users' access to, or use of, services and applications through electronic communications networks where such measures could affect their rights under the CFR or general principles of EU law (including the ECHR), unless the restriction is proportionate, necessary and provided by law. Stakeholders have suggested that Article 100 'grants rights to end users that must be complied with'. However, rather than creating a new right or entitlement, Article 100 imposes an obligation on Member States to respect rights which have already been recognised in the Charter. To date, the CJEU and ECtHR have only recognised the incidental (negative) protection of internet access (see preceding section), which carry through to Article 100 EECC.
In January 2026, the Commission published its proposal for a Digital Networks Act (DNA), aiming to replace the EECC. While it addresses net neutrality (Articles 93‑94) and largely maintains key end user rights, the DNA proposal contains no explicit, cross-sectoral obligation for national measures restricting access to comply with the CFR. As a result, the DNA proposal effectively repeals Article 100 EECC. The Parliament's LIBE (Civil Liberties, Justice and Home Affairs) committee's draft opinion on the DNA proposes to reinstate Article 100 of the EECC to ensure 'that measures restricting access to services respect the principles of presumption of innocence, privacy, and fair procedure'. The European Data Protection Supervisor highlights Article 100 EECC's relevance for fraud prevention measures.
If the general protection against disproportionate restrictions is repealed, national access restrictions are only subject to EU secondary law where they fall within the regulatory scope of sector-specific EU legislation. For instance, the Directive on combating terrorism, the Directive on combating child sexual abuse, the Information Society Directive, the Digital Services Act (DSA), the Open Internet Access Regulation, the European Media Freedom Act and the Audiovisual Media Services Directive regulate how Member States and intermediaries govern intermediary and media services. It remains uncertain, however, whether and to what extent these instruments govern the suspension of internet access as a sanction for copyright infringements and criminal offences. Affected end users may, in such cases, also find it difficult to effectively invoke the CFR as an interpretive yardstick in domestic legal proceedings (Article 51(1) CFR) and have to rely on alternative sources of protection, such as the ECHR or the relevant provisions of national constitutions.
National constitutions
On the national level, an obligation for states not to restrict internet access may similarly be derived from rights such as freedom of expression, private life and education. These rights are broadly protected in the constitutions of EU Member States. Already in 2012, a survey among 20 Council of Europe states found that the right to internet access is protected in theory by the constitutional guarantees applicable to freedom of expression and the freedom to receive ideas and information. In 2009, even before the ECtHR had delivered its first ruling to that effect, the French Constitutional Court ruled that internet access is protected by the freedom of expression and communication. On this basis, it struck down national legislation that allowed an administrative agency to cut off connections for copyright infringement without a court order. More recently, in 2023, the Supreme Court of Estonia found that completely denying asylum seekers internet and mobile phone access was unconstitutional, because it disproportionally affected their constitutional rights to family life and to receive information.
National legislation
Even where there is no constitutional right to internet access, national legislation may provide a statutory entitlement to internet access. This is the case in Portugal, where Article 5 of the 2021 Charter of Human Rights in the Digital Age explicitly states that 'intentional interruption of internet access, whether partial or total, or limiting the dissemination of information or other content, is prohibited, except in the cases provided for by law'. Although more accurately described as a statutory claim, for D. M. Soares Farinho, this is 'an addition to the catalogue of fundamental rights concerning cyberspace' as 'only the law may now foresee situations in which interruptions and limitations may occur and that they must comply with the regime set out in Article 18 of the Constitution [which sets out conditions for restricting fundamental rights]ʹ. Regarding the scope of the claim, Portuguese law already allows for situations in which providers may cut service.
Positive right to internet access: Ensuring universal availability
International human rights law
International human rights law does not include a positive right to internet access, which would allow users to claim a connection from the state if none were otherwise available. In principle, however, a positive right to internet access could be derived from socioeconomic rights which are protected under the International Covenant on Economic, Social and Cultural Rights (ICESCR), such as the right to benefit from scientific progress and its applications (Article 15). This argument has been made by scholars and is supported by the CESCR's general comment No 25, which concluded that the state's obligations under Article 15(1)b ICESCR include both 'eliminating censorship or arbitrary limitations on access to the internet, which undermines access to and dissemination of scientific knowledge' and 'providing access to the internet and other sources of knowledge'. As with most of the provisions of the ICESCR, Article 15 is subject to progressive realisation, however, meaning it is not immediately fully enforceable. Instead, states are required to take steps 'to the maximum of their available resources' towards its full realisation over time. Even before issuing general comment No 25, the CESCR had referred to internet access in its concluding observations. Several other UN treaty bodies, including the Committee on the Rights of Persons with Disabilities and the Committee on the Elimination of Discrimination against Women, have likewise referred to states' positive obligations to ensure access to the internet through infrastructure, services, facilities and technological accommodations.
European human and fundamental rights law
Although possible in principle, thus far no positive obligations for states to provide internet access have been derived from the ECHR or the CFR. While CFR seems to present a plausible anchor for a right to internet access, it merely sets out the principle of respect by the EU for national law, rather than establishing a positive right of access. Within the European framework, such a right may be more readily derived from the European Social Charter (revised) (ESC), which protects social and economic rights, including the right to protection against poverty and social exclusion (Article 30). However, unlike the CFR and the ECHR, the ESC is not subject to judicial enforcement. Instead, compliance is primarily monitored by the European Committee of Social Rights (ECSR), whose conclusions and decisions are not directly enforceable before national courts. Moreover, its à la carte ratification system allows states to choose which provisions they accept, resulting in uneven obligations between states and limiting the charter's potential as a foundation for the recognition of new fundamental rights.
EU secondary legislation
EU secondary legislation does not establish a statutory entitlement for individuals to claim internet access from the state. It does, however, establish universal service obligations. Under Article 84 EECC, Member States are required to ensure all consumers have access to affordable, adequate broadband at a fixed location. Under the EECC (Annex V), universal service must support a specific set of services deemed essential for social and economic participation. These include email, search engines enabling search and find of all types of information, internet banking, and social media and instant messaging. According to the European Commission, 21 Member States have met their obligation to define the meaning of adequate broadband internet access service. Most countries have set a minimum download speed of 10 Mbps and a few have set a minimum speed of 30 Mbps. Romania has defined a maximum download speed of 100 Mbps, the maximum so far. Where upload requirements are set, they range from one to five Mbps.
By contrast, the newly envisaged Article 87(1) of the DNA proposal resembles a rights-based approach more closely, entitling all consumers in the EU to affordable, adequate broadband at a fixed location. Consistent with this, in the explanatory memorandum to the DNA, the Commission explicitly links the universal service provision under Article 87(1) with principle 20 of the European pillar of social rights, which recognises the right to access essential services (including digital communications) of good quality. In relation to other aspects, the DNA proposal would maintain the essence of the universal service obligations under Article 84 EECC.4
National constitutions
While a general right to connectivity could be derived from other constitutional provisions, provisions concerning information technology or communication services offer the most likely basis for recognising such a right. This is the case in Portugal, where internet access is protected by Article 35(6) of the constitution, which guarantees everyone free access to public-use information technology networks. Former Constitutional Court Justice, M. C. Sottomayor, argues that the right to internet access under this provision is dual in nature: negative as a 'right freedom' and positive as a 'social right' which places ʹthe state under duties to provide material conditions needed to access social goodsʹ, albeit conditioned on what is actually possible. Internet access is similarly protected under Article 5A(2) of the Greek constitution, which guarantees the 'right to participate in the Information Society' and requires that the state facilitate access to electronically transmitted information as well as the production, exchange and diffusion thereof. Although it seems that Article 5A(2) has not yet been invoked for internet access, E. Iliadou asserts that it encompasses at least three core elements: access to digital services and software with public service characteristics; specific individual rights to protection for all digital human activities; and the right to ensure access to technology that addresses the risks of digital poverty.
In the German constitution, the need to ensure the adequate and appropriate postal and telecommunications services is recognised as a constitutional objective under Article 87f. Theoretically, this could also cover internet access. However, while constitutional objectives are binding on the state and its organs, they do not generally give rise to enforceable individual rights or provide a strong basis for constitutional challenges, and the German constitutional court typically grants the legislature significant discretion in implementing constitutional objectives. In Italy, there have also been repeated, unsuccessful legislative efforts to introduce a constitutional provision guaranteeing a right to internet access.5 Scholars argue that the Supreme Court's rejection of a fundamental right to access a telephone line can be transposed to internet access. However, although non‑binding, a 2015 'declaration of internet rights' adopted by the Italian Study Commission on the Rights and Duties Relating to the Internet affirms internet access as a fundamental right which imposes positive obligations on the state to ensure equal and adequate access for all.
Internet access and the right to equal treatment
Scholars argue that equality provisions can justify a right to internet access. P. Passaglia and G. De Minico build the right on Article 3(2) of the Italian constitution, which obliges the state to remove the economic and social obstacles impeding full development – the digital divide being one such obstacle – so that the equality clause itself supplies the basis for a right of access. On this basis, Passaglia treats access as already contained in the constitution, its enforceable core being that no group may be shut out, while De Minico goes further, reading the same clause as a binding duty to provide access and treating unconnected regions as a violation in themselves. In Germany, it could be argued that an administration may not disproportionately exclude individuals from accessing WiFi that it otherwise provides to the public. A similar logic may apply for protected groups or individuals in general under the equality and non-discrimination provisions of other jurisdictions.
National legislation
Even when constitutions do not recognise a positive right to internet access, a similar entitlement may be established through legislation. This is the case in Estonia, where the parliament passed a law in 2000 holding that 'every person shall be afforded the opportunity to have free access to public information through the internet in public libraries'. Nine years later, the Finnish government became the first country globally to make functional broadband access a legal right. The right to functional broadband in Finland was enacted through amendments to the Communications Market Act. It stipulated that telecommunications companies must offer connectivity speeds of at least one megabit‑per‑second (Mbps). At the time, the government stated that proper communication links were no longer considered luxury products but necessary tools in daily life. Since then, the required speed has been increased to 5 Mbit/s.
In Spain, a universal right of internet access is established under Article 81 of organic law 3/2018 (Digital Rights Act). Despite being formally enacted as an organic law (a specific category of laws which require an absolute majority of the Congress of Deputies to pass, modify or repeal), many of the provisions of the Spanish Digital Rights Act, particularly the right of access to the internet, are in fact of an ordinary legal nature, i.e. they constitute legislative entitlements. This is specified in the final provisions of the act. As a result, the right of access it creates does not enjoy direct protection before the constitutional court through an individual constitutional complaint for violation of fundamental rights. The 2021 Digital Rights Charter further developed and clarified the provisions of the Digital Rights Act, but it lacks binding legal force and functions primarily as a political guide. For this reason, academics argue that stronger protection would require constitutional reform expressly recognising certain digital rights as fundamental rights.
In addition to specific national measures such as these, EU Member States have adopted legislation transposing the EECC. However, while the code provides a common baseline, the implementation of universal service obligations varies between Member States. States differ in how they define the technical parameters of adequate broadband, the services which must be available and the mechanisms through which universal service is delivered. Regarding the delivery of universal service, many States allow the regulator or relevant minister to designate specific provider(s) to fulfil reasonable requests for access in areas where the market fails. This is the case in Belgium, Ireland, Finland, Poland and Spain, for example.
In some countries, the delivery of universal service is reinforced by additional provisions that allow the individual to legally compel the provider to act. In Germany, for example, end users hold a statutory claim under section 156 of the telecoms law (TKG) against designated providers for a fixed-location connection comprising both voice and fast internet services at their primary residence or place of business to ensure a minimum level of social and economic participation. Similarly, in Poland, pursuant to Article 366 of the electronic communications law, a 'designated undertaking is required to conclude a contract with a subscriber within 30 days of receipt of an application'. According to academic commentary, failure to conclude the contract within the specified period gives rise to a claim for the conclusion of the contract for an end user who meets the conditions specified in the contractual documents, and furthermore justifies a claim for damages and potentially a claim for loss of profits.
Targeted right to social welfare benefits and discounts for internet access
If internet access is regarded as indispensable for existence or participation in society, a limited right to social welfare benefits or subsidies to support connectivity for those who could not otherwise afford it could, in principle, be derived from rights such as the right to social security and the right to a dignified minimum standard of living. Such provisions are not always (directly) justiciable, however, meaning that they cannot always be directly invoked by an individual before a court, and even where they are, it is unclear whether internet access would be included in their scope.
International human rights law
Article 9 of the ICESCR recognises 'the right of everyone to social security, including social insurance'. As outlined by the CESCR in general comment 19, it requires states to establish a social security system that covers at least the main social risks (e.g. old age, sickness, disability, work injury, maternity, family/children and unemployment). However, it does not prescribe the exact benefit types, levels or designs which must be implemented. Moreover, internet access does not seem to fall within the scope of the core obligation for states to ensure the 'minimum essential levels' of benefits that allow individuals and families to acquire essential health care, basic shelter, water, sanitation, food and basic education. Academics have argued that although there is no human right to internet access under the ICCPR or the ICESCR, such a right appears to exist for persons with disabilities under Article 9(2) of the Convention on the Rights of Persons with Disabilities (CRPD). It explicitly requires states to 'promote access for persons with disabilities to new information and communications technologies and systems, including the internet', and mandates the promotion of the design and distribution of these technologies at an early stage so they become accessible at a minimum cost.
European human and fundamental rights law
Although the ECtHR has increasingly protected existing benefits that secure subsistence as part of the right to property under Article 1 of Protocol No 1, the ECHR contains no explicit right to a subsistence minimum. Nor does it require states to establish social security systems or limit their discretion regarding the type and level of benefits provided. By contrast, social security benefits from explicit protection under Article 34 of the CFR. However, the relevant clauses of Article 34 CFR partially qualify as principles under Article 52(5) CFR and partially provide for access guarantees to social security systems for EU citizens who exercise their right to move and reside in another Member State, while leaving the details of the benefits to be determined by the competent legislature. Although subject to weaker enforcement, the ESC seems to offer a clearer normative basis for recognising a right to targeted social welfare support for internet access. Articles 13 and 14 of the revised ESC guarantee the right to social and medical assistance and to benefit from social welfare services, while Article 30 enshrines a right to protection against poverty and social exclusion. During the COVID‑19 crisis, the ECSR noted that the rapid digitalisation of social and other services during the pandemic had tended to accentuate the social exclusion of people living in poverty. Drawing attention to Article 14, it found that when digital delivery of social welfare services becomes necessary or preferable, states should ensure that users of those serves have effective access to the requisite technology.
National constitutions
Many national constitutions contain a provision concerning social security or a combination of provisions enabling courts to derive a right to a minimum level of subsistence. These provisions appear capable of being interpreted as requiring support for internet access under the minimum subsistence or social security guarantee. The practical justiciability of a right to social security depends on the requirements of enforcement procedures and the nature of the constitutionally protected right. While a very limited6 subjective right to social security is recognised in Finland, Germany and (arguably) Portugal, in Belgium and Spain, the right to social security in itself does not create a directly enforceable entitlement to specific social welfare rights or support. However, the absence of a subjective right does not necessarily exclude individuals from defending themselves judicially against a law that affects their ability to access social security, potentially even allowing for a final appeal to the constitutional court, like in Portugal. Moreover, social security provisions may become, to a certain extent, justiciable when combined with other subjective rights, such as non‑discrimination.
In Germany, individuals can enforce their 'fundamental right to the guarantee of a subsistence minimum that is in line with human dignity' through a constitutional complaint. In Belgium, while constitutional complaints from individuals are not permitted, those who have a 'justifiable interest' may bring an action for annulment against a measure they deem unconstitutional. They can also trigger a court's obligation to address a preliminary question to the constitutional court by challenging the constitutionality of a provision before that court. There is no individual constitutional complaint mechanism in Portugal, but all courts are competent to assess the constitutionality of rules which they are to apply. Their decisions may be appealed before the constitutional court once all the available ordinary appeals have been exhausted. Conversely, in Spain, individuals may not raise a constitutional complaint based purely on the social security provision (Article 41), because it does not fall within the category of rights and freedoms whose protection may be sought through a constitutional complaint in accordance with Article 53(2) of the Spanish constitution. Case law on the social security provision under Article 41 is primarily developed through abstract and concrete constitutional review procedures (filed by qualified institutional actors, such as courts and members of parliament). In Finland, the constitutionality of law is primarily assessed by a parliamentary committee prior to their enactment. However, all courts are empowered to perform judicial review of legislation to a certain extent.
Courts in none of these jurisdictions have recognised internet access or the costs for this as part of the constitutional social security or subsistence minimum guarantees. Nevertheless, for Germany, academics argue in favour of this, and contemporary social welfare benefits under the social code account for the costs of internet access and terminal equipment. In Belgium, social tariffs are provided for broadband; in Portugal, the social internet tariff provides low-income family internet access for a reduced price; and in Spain, beneficiaries of the minimum basic income can receive the UNICO social bonus, which is a voucher worth up to €240 per year. In Finland, telephone and internet costs are included in the basic amount of social assistance.
Outlook: Introducing a fundamental right to internet access
Fleshing out the scope
According to research by Redeker et al., internet access has emerged as one of the three most prominent rights in the landscape of 'digital constitutionalism', appearing in 24 of the 30 different initiatives aimed at establishing rights and governance norms for the internet that they studied. However, although often seen as a precondition for all other digital rights, a future right to internet access is not subject to uniform conceptualisation. Some scholars conceive it as a positive obligation for states to ensure access, while others as freedom from arbitrary or otherwise disproportionate denial of access. Within the literature, there appears to be a growing consensus towards a right to internet access which includes both a positive and a negative dimension. Despite this, many scholars remain quite vague as to the precise scope of the positive obligations such a right would impose on states. Depending on how it is formulated and subsequently interpreted by courts, such a right could require states to ensure deliverables, such as physical infrastructure, funding in times of need, universal mobile connectivity, fixed connection points or - on a broad reading – terminal devices and digital literacy training.
Proposals for a fundamental right to access are usually formulated in broad and open-ended terms. This ensures technological neutrality, future-proofness and commercial viability, leaves the ordinary legislator with a margin of appreciation, and facilitates consensus building. Accordingly, concepts such as adequate, accessible and affordable access, which provide the foundation for classic frameworks on a right to internet access, are often left undefined. For instance, C. L. Álvarez and J. M. Soberanes Díez have suggested that the 'minimum essential content' of a right to internet access includes a requirement for the state to both refrain from disproportionately restricting internet access or hindering the expansion of infrastructure, as well as a requirement for them to take measures to ensure that internet access is available, accessible, acceptable and adaptable both to technological advances and the needs of individuals in varied cultural and social contexts. They do not, however, define the specific broadband speeds which would be appropriate.
Proponents of a more expansive view often submit that not only an access point but also a 'meaningful' connection should be provided for. While the term aptly highlights that the formalistic provision of connectivity does not necessarily ensure effective participation, meaningfulness as a guiding principle is itself open to different interpretations. According to B. Çalı, this would require states to take steps towards ensuring access for those unable to afford it and also ensure that access is open and not manipulated or restricted to only certain parts of the internet. Since 2023, the EU has been funding an ITU project on promoting and measuring universal meaningful connection (UMC). This concept was developed as part of the implementation of the Roadmap for Digital Cooperation, issued by UN Secretary-General in 2020. Universal connectivity is understood as connectivity for all, while meaningful connectivity is defined as a 'level of connectivity that allows users to have a safe, satisfying, enriching and productive online experience at an affordable cost'. It would depend on 'connectivity enablers', including 'infrastructure, affordability, device, skills, and safety and security'.
Choosing the legal footing
At the time of writing, the recognition of a general, stand-alone right to internet access at European or international level would require either the amendment of an existing human rights instrument or the adoption of a new one. Several legal frameworks may serve as the bedrock for a right to internet access. It could be codified in the ECHR or the CFR. A new provision would share the operating modalities and constraints of its legal framework and related enforcement procedures. For instance, if a new right to internet access was included under the CFR, unless clearly stipulated it would face the risk of being interpreted as a principle, given the pattern of qualifying access to services of general economic interest as principles (Article 36 CFR). Additionally, it could only be invoked effectively against Member States where they are implementing Union law (Article 51(1) CFR). Although it would not create a fundamental right to internet access, the recognition of a statutory claim to internet access in EU law could bolster the level of protection available. Article 87(1) of the DNA proposal seems to reflect such an approach. However, while a statutory claim to internet access may be easier to establish, it would be more vulnerable to future restrictions or amendments. An alternative option would be to focus on non‑binding measures to promote internet access, such as the European pillar of social rights and the European declaration on digital rights and principles for the digital decade.
Further Reading
- Mildebrath, H., Internet access as a fundamental right: Exploring aspects of connectivity, EPRS, European Parliament, July 2021.
Endnotes
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