- On the scope of Bill No. 2780/2017-CR:
On May 28, 2018, Bill No. 2780/2017-CR: "Bill Declaring Internet Access as a Human Right" was filed. As stated in Article 1 of the referred Bill, the purpose of the Bill is to declare Internet access as a fundamental right:
Article 1.
Objective:
"To declare a fundamental right to internet access for all Peruvian citizens residing in the national territory."
As part of the grounds set forth in the Statement of Motives, it has been indicated that the Bill under comment "(....) seeks to declare the existence of a fundamental right over the Internet, recognizing to all Peruvians the fundamental right to access and enjoy it efficiently, since it is an enabler to other rights declared as fundamental such as the right to information, right to information and communication technologies, right to privacy and telecommunications, helping users to access different contents, services and access to state advertising that the state promotes as a product of the management of its modernization through its accounts in social networks and its web portal.
The declaration of this new fundamental right will not only favor the inclusion and development of remote, rural and underprivileged populations but, as a relational right, it becomes a key element to promote the quality of life of Peruvians and also other elementary rights such as the right to education, information and freedom of expression. Since the concretization of the right must be promoted mainly by the State, it turns out to be a fundamental right of a positive nature or a benefit right".
- Regarding the legal nature and essential content of a fundamental right:
Fundamental rights are founded pluralistically, in other criteria, in their peculiar nature, in their historicity, in the existence of universal ethical principles, etc. They are the minimum moral foundation that gives rise to the political organization of society, so that through their recognition and protection they contribute to the happiness and welfare of the population[1].
They can be defined as those essential elements of the political legal system, which deriving from the superior values stemming from the dignity of the human being (such as equality, justice and freedom), ground, guide and determine it, appearing as subjective rights of the subjects of law (according to the type of law in question), and as objective elements that protect, regulate and guarantee the various spheres and relations of social life, with their own normative force of the highest hierarchy[2].
As recognized by our Constitutional Court[3], the concept of fundamental rights includes both ethical assumptions and legal components, meaning the moral relevance of an idea that compromises human dignity and its objectives of moral autonomy, and also the legal relevance that turns rights into a basic material norm of the legal system, and is a necessary instrument for the individual to develop all his potentialities in society.
In this regard, it is worth mentioning that Article 3 of our Political Constitution expressly recognizes that the enumeration of fundamental rights set forth in Article 2, "(...) does not exclude the others guaranteed by the Constitution, nor others of a similar nature or which are based on the dignity of man, or on the principles of sovereignty of the people, the democratic rule of law and the republican form of government".
However, the need for their recognition and protection is based on the need to preserve, develop and perfect the human being in the fulfillment of his purposes of existence and association. Fundamental rights are not conferred by the State, but flow from the very nature of the human being and belong equally to all members of the population[4].
The main characteristics that distinguish fundamental rights are the following[5]:
- Universal: Their principles are common to all human beings, without distinction of any kind. They are the common and perpetual heritage of humanity.
- Intrinsic: Their possession and enjoyment does not depend on the prior accreditation of any quality or property other than that of being a human being.
- Absolute: They are the genuine expression of fundamental goods relevant to their holders, constituting supreme requirements with respect to any other arising from economic, political, etc. considerations. They are requirements that, in case of conflict with others, displace them to the point of annulling them.
- Inalienable: Such rights cannot be transferred to other subjects. Due to their ontic character, it is not possible to renounce them. In short, their arbitrary disposition is inadmissible.
- Perpetual: Its principles are not mutable, since human nature does not change or vary.
- Indelible: Its principles cannot be suppressed from human feeling.
- Unitary: Its principles are indivisible, since they are the same, regardless of time or place.
- Mandatory: Its principles must be accepted in a generic way.
- Necessary: Its principles are indispensable for human existence and coexistence.
However, from the content of the Exposition of the Bill No. 2780/2017-CR, we do not see any point in which reference is made to any of the aforementioned characteristics, so we consider that there is not sufficient support nor do the necessary conditions concur for the recognition of a "fundamental right to internet access" to proceed.
- On Internet access as a public service:
As recognized in the Decision of the Plenary Jurisdictional Court of the Constitutional Tribunal in Case No. 00034-2004-PI/TC, although our legal system has not provided a general provision that establishes or includes a definition of Public Service, "(...) it is important to take into account that there are a series of elements that together characterize, in broad terms, a service as public and in view of which, it is reasonable to protect it as a constitutional asset of the first order and economic activities of special promotion for the development of the country".
These elements are as follows:
a) Nature essential to the community.
b) Necessary continuity of service over time.
c) Regular nature (i.e., minimum quality standard).
d) The need for equal access.
In that sense, we are of the opinion that from the content of the Exposition of Bill No. 2780/2017-CR it is indeed possible to appreciate grounds that are related to the aforementioned elements that support the qualification of Internet Access as a Public Service.
In this regard, it is pertinent to point out that Article 12[6] of the Unified Text of the Telecommunications Law (approved by Supreme Decree No. 013-93-TCC) recognizes Internet Access as a Public Telecommunications Service.
Notwithstanding the foregoing, it is worth mentioning that Article 40 of the Sole Ordered Text of the Telecommunications Law (approved by Supreme Decree No. 013-93-TCC) expressly states that those services that: (i) have been declared as such in the Regulations of the Telecommunications Law; (ii) are available to the general public; and, (iii) whose use implies the payment of a fee, shall be considered or qualified as "Public Services" in telecommunications matters.
Precisely, in relation to what is indicated in the preceding paragraph, in the current text of numeral 1 of article 238[7] of the Regulations of the Telecommunications Law (approved by Supreme Decree No. 020-2007-MTC), Internet Access has been declared a Public Service (specifically, a public value added service of packet data switching).
The recognition of Internet Access as a Public Service is also provided for in numeral vii) of Article 1 of the General Regulation of Public Telecommunications Services, approved by Resolution of the Board of Directors No. 123-2014-CD/OSIPTEL (modified by Resolution of the Board of Directors No. 89-2016-CD/OSIPTEL.
Por tanto, somos de la opinión que no resulta procedente el reconocimiento del Acceso a Internet como un derecho fundamental, como lo pretende el Proyecto de Ley No. 2780/2017-CR; toda vez que dicha actividad se encuentra ya reconocida expresamente como un Servicio Público en materia de telecomunicaciones.[/vc_column_text][vc_empty_space height=»20px»][vc_column_text]
Source: prometheo.pe