Out of the Cage, Into the Net: Understanding Access to the Internet in Prison as a Human Right

Published by Sofia Ciuffoletti at 09/08/2020

When examining the case law of the European Court of Human Rights (hereafter referred to as “the Court”), the issue of digital justice and internet access forces us to analyse several theoretical questions. What is the internet? A means or an end? How do we define the right to access the internet? Is it an autonomous human right, or does it augment other rights protected by the European Convention on Human Rights? And if we understand internet access as a human right, what are its implications for the community of prisoners compared to people living outside of the prison context?

Below, I will propose decoding internet access understood as a human right in the prison context in the European region, based on the legal reasoning adopted by the Court, and highlight this legal paradigm’s positive and negative features and consequences.

Internet access has increasingly been “understood as a right” by the Council of Europe and other international organizations, and calls have been made to develop effective policies to attain universal internet access, since an increasing amount of services and information are only available on the internet.

Within the Council of Europe, the Declaration on Freedom of Communication on the Internet recognises the need for the removal of barriers to the participation of individuals in the information society on a non-discriminatory basis. ¹Declaration on Freedom of Communication on the Internet, adopted by the Committee of Ministers of the Council of Europe on 28 May 2003, at the 840th Meeting of the Ministers’ Deputies. ²Principle 4 addresses the removal of barriers to the participation of individuals in the information society: “Member states should foster and encourage access for all to internet communication and information services on a non-discriminatory basis at an affordable price. Furthermore, the active participation of the public, for example by setting up and running individual websites, should not be subject to any licensing or other requirements having a similar effect.” Recommendation CM/Rec(2014)6 of the Committee of Ministers to Member States on a Guide to Human Rights for Internet Users affirms that the internet has a public service value. ³Recommendation CM/Rec(2014)6 of the Committee of Ministers to Member States on a Guide to Human Rights for Internet Users, adopted by the Committee of Ministers of the Council of Europe on 16 April 2014, at the 1197th Meeting of the Ministers’ Deputies.

Any restrictions to this freedom cannot be arbitrary and must pursue a legitimate aim in keeping with the European Convention on Human Rights.

At the same time, recognising the right to internet access forces us to consider the varying degree to which this right can be exercised among and within societies and the issue of the “digital divide.” In his report on May 16, 2011 to the United Nations Human Rights Council, the latter’s special rapporteur on the promotion and protection of the right to freedom of opinion and expression first referred to the concept of the “digital divide.” It defines the gap between privileged people with effective access to digital and information technologies the internet, and those with extremely limited or no access at all, which includes detainees. ⁴Report of the United Nations Human Rights Council’s Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, 16 May 2011 to the Human Rights Council (A/HRC/17/27).

Digital Justice or Digital Divide?

In the Court’s case law, the issue of digital justice and internet access has been explored under the scope of Article 10 (right to information and access to legal data and digital legal services) and Article 2 of Protocol 1 (right to education). All the legal reasoning concerning the rights connected to internet access is grounded in the positivist idea that strictly links the internet to human and social progress. ⁵United Nations Human Rights Council A/HRC/32/L.20, 2. The internet is also understood as a way of enhancing the rights of freedom of expression and freedom of peaceful assembly and association, and the protection of privacy online is a necessary tool for exercising these rights. ⁶Ibid.

Particularly interesting in the prison context is the connection between internet access and the promotion of the right to education, as the internet opens opportunities for affordable and inclusive education on a global scale. ⁷Ibid.

Among recent attempts to translate the right to internet access into internationally recognised law, the UN Human Rights Council’s resolution on The Promotion, Protection and Enjoyment of Human Rights on the Internet denounces the “digital divide,” stressing the need to reduce it in relation to certain categories of vulnerable subjects, mainly women and persons with disabilities. ⁸Ibid.

Paired with the question of vulnerability and social disability, the notion of the “digital divide” is relevant when addressing the issue of internet access in prison. Looking at the Court’s case law, the legal vulnerability of prisoners has been affirmed on a case by case basis, starting from the consideration that the essence of imprisonment is not only state control over a prisoner’s physical well-being, but also subjugation to state authority and control in the areas of personal autonomy, access to information, especially legal information, and contacts with the outside world. The legal vulnerability of prisoners should be assessed through an analysis of the prison context and the specific conditions of deprivation of liberty.

We can trace the development of the legal reasoning on the issue of internet access in prison by following the Court’s steps and using three recent cases that have explored this question, confronting the Court with the necessity of interpreting internet access as a human right in the prison context.

Kalda v. Estonia

The Court first dealt with the matter in the case of Kalda v. Estonia, in which a violation of Article 10 was found because of restrictions placed on prisoners’ access to certain websites on the internet. ⁹Kalda v. Estonia (Application No. 17429/10), 19 January 2016, EHCR. The websites to which the applicant had requested access “predominantly contained legal information and information related to fundamental rights, including the rights of prisoners.” ¹⁰Ibid., § 50. Since “the accessibility of such information promotes public awareness and respect for human rights,” the Court deemed important “the applicant’s argument that the Estonian courts used such information and the applicant needed access to it for the protection of his rights in the court proceedings.” ¹¹Ibid. Moreover, “when the applicant lodged his complaint with the domestic courts, the Estonian translations and summaries of the Court’s judgments were only available on the website of the Council of Europe Information Office,” to which he had been denied access. ¹²Ibid., § 51.

No general positive obligation exists for member states to grant prisoners internet access. ¹³Ibid., § 45. The only reason the Court found a violation of Article 10, then, is because the state, in this case Estonia, had already granted internet access to prisoners. This resulted in a very uneven situation across European member states, limiting the Court’s ability to intervene in implementing access to information and bridging the “digital divide” in the prison context.

Jankovskis v. Lithuania

In a subsequent case, Jankovskis v. Lithuania, a prisoner complained that he had been refused access to a website run by the Lithuanian Ministry of Education and Science, thus preventing him from receiving education-related information, an act in breach of Article 10 of the Convention. ¹⁴Jankovskis v. Lithuania (Application No. 21575/08), 17 January 2017, EHCR.

What is interesting about this case is the fact that the Court interpreted the case not considering internet access itself, but rather access to a specific kind of information and connecting it to the right to education and the possibility of rehabilitation in prison. The applicant’s complaint was that he, as a prisoner, wanted access through the internet to information published exclusively on a website belonging to the Ministry of Education and Science. ¹⁵Ibid., § 53. The Court reiterated that “imprisonment inevitably entails a number of restrictions on prisoners’ communications with the outside world, including on their ability to receive information.” ¹⁶Ibid., § 55. Thus, as already affirmed in Kalda, “Article 10 cannot be interpreted as imposing a general obligation to provide access to the internet, or to specific internet sites, for prisoners.” ¹⁷Ibid.

Nevertheless, the Court found that access to information relating to education is granted under Lithuanian law. Therefore, there is a relevant difference between Kalda and Jankovskis in that Lithuania not only has no existing law granting prisoners internet access, but “the prohibition on the inmates’ use of the internet in prison can be said to be ‘prescribed by law’ within the meaning of Article 10 § 2 of the Convention.” ¹⁸Ibid., § 57.

Still the Court found a violation of Article 10, since “the interference [with the right to receive information] cannot be regarded as having been necessary in a democratic society.” ¹⁹Ibid., § 64.

The Court also made the link between internet access and the right to information by stating that “certain information is exclusively available on internet,” thus establishing the nature of the internet as a tool for receiving information related to education. ²⁰Ibid. The Court went further by affirming that beyond the right to information, the right to social rehabilitation was also at stake in the case, since “it is not unreasonable to hold that [the] information was directly relevant to the applicant’s interest in obtaining education, which is in turn of relevance for his rehabilitation and subsequent reintegration into society.” ²¹Ibid., § 59. According to the Court, internet access is not yet a right in the strict sense, but it can be a tool for exercising fundamental rights. It is a means and not an end.

Mehmet Reşit Arslan and Orhan Bingöl v. Turkey

Finally, the Court examined the right to internet access in prison in Mehmet Reşit Arslan and Orhan Bingöl v. Turkey. ²²Mehmet Reşit Arslan and Orhan Bingöl v. Turkey (Application Nos. 47121/06, 13988/07, and 34750/07),18 June 2019, EHCR. This case represents the strongest connection between internet access and the right to education.

In June 2006, the two applicants, who were serving prison sentences for terrorist activities, sat an entrance examination for two higher education institutions. Both applicants, relying on the relevant domestic legislation, asked to be able to use a computer with internet access in the rooms designated for this purpose by the prison authorities for pursuing their higher education. Their requests were denied by the prison authorities and their appeals against those decisions were unsuccessful. Just as in Lithuania, the relevant Turkish legislation authorises the use of audio-visual training resources, computers, and internet access under supervision in rooms designated for this purpose by the prison authorities as part of rehabilitation or training programmes. (Ibid., § 53.))

Specifically concerning internet access as a way of making the right to education available, the Court relied on its previous case law on access to education in prison. Even if the right to education is not an absolute right and no duty is imposed on member states to set up particular educational establishments, an effective access to existing educational establishments needs to be provided. ²³Ibid., § 39. The use of computers and effective internet access are seen by the Court as “a material means indispensable for the effective exercise of the right to education, insofar as it enables prisoners to prepare for examinations to be admitted to educational establishments and, where applicable, to continue their studies.” ²⁴Ibid., § 53.

In this case, as in Kalda, the state provided internet access in prison under certain conditions and, as in Jankovskis, the Court undergirded the protection of internet access by causally linking it to the right to education.

Future Perspectives

If this is the trend in case law on internet access, there are areas in which the Court will be challenged in the future to interpret the role of the internet in prison from other and potentially more critical perspectives.

As a matter of fact, a trend has been identified in some European countries concerning the digitalisation of justice and trials, as well as the possibility of replacing physical meetings with family members, lawyers, and other relevant parties with online meetings through the use of software for online communication. The Italian case is paradigmatic of this trend: the newly introduced legislative decree No. 123/2018 has foreseen the possibility of prisoners participating in surveillance hearings through videoconferences.

This seems to be a necessity dictated more by the need for cutting the budget for prison transfers than the need for guaranteeing the involvement of prisoners in trials. The physical presence of prisoners in courtrooms is crucial for guaranteeing the right to a fair trial, and it is important to reduce the imposed isolation of prisoners and the physical distance between detained persons and courts.