O direito humano de acesso à internet

Abstract

The paper is about the human right to internet access. The objective of the first chapter is to affirm the existence of this right and its essentiality. To do so, fundaments of four different types are presented. The first is an international human rights law fundament and it is based on the analysis of three United Nations documents. The second is substantive, and seeks to demonstrate that the internet has become an instrument indispensable to the realization of many duties and rights, many of them human rights. Hence, the access itself must be considered a right, endowed with the same legal status of those dependant rights. The third fundament is philosophical. The focus is on the community aspect of the internet. It is demonstrate that there is a virtual citizen, bearer of rights and duties within the net. So, based on Hannah Arendt s lesson, it is affirmed that if there is a digital dimension of the citizenship, there must be a right to acquire it. This is done by the right to internet access. The fourth fundament is positive and its specific objective is to identify a fundamental right to internet access within the Brazilian constitutional order, arising and unwritten. After, it is done a study of comparative law, analyzing how the subject has been dealt by the law and the jurisprudence of different countries. At the end of the first chapter, the most common objections to the existence of the human right to internet access are presented and refuted, including the issue about the costs of the right. Once the existence of the right is affirmed, the second chapter analyses its content and juridical limits. First, the right is divided in a dimension of access to the physical infrastructure and a dimension of access to the content. The main Brazilian public policies that aims to fulfill both aspects of the right are presented. In a second moment, it is studied how the right is violated. One alternative is if there is no offer of internet service in a place. The other alternative is by digital censorship. It can be done by hardware or by software, by the State or by private actors. Then, it is analyzed if disconnection sanctions and measures of total interruption of internet service can be accepted under the Brazilian constitutional order, together with the Law 12.737/2012. Requirements for content filtering are presented. The Bill 2.126/2011, known as the internet civil mark, is studied. In the end, the enforceability of the right is analyzed.