A digital Magna Carta – is Tim Berners-Lee on the right track?

Sir Tim Berners-Lee argues that we need a “digital Magna Carta” to establish fundamental rights online – but what would it mean?

Sir Tim Berners-Lee argues that we need to take steps today to protect the World Wide Web and wider internet for the future.

He wants to ensure that citizens and businesses can carry on benefiting from the revolution he sparked, and is calling for a “digital Magna Carta” to establish fundamental human rights such as net neutrality, protection from excessive surveillance, and freedom of expression on the internet.

Access: human right or commercial service?

The Universal Service Directive requires EU member states to ensure citizens’ access to communications services at data speeds that are sufficient for functional internet use. However, actual internet access depends on individuals being able to contract with an ISP, and there may be perfectly valid reasons for refusal of access, such as credit risks.  

There may also be strong arguments in favour of withdrawing services – for example, from individuals found to have engaged in illegal file-sharing or other criminal activity.

A clear, guaranteed right to internet access does not yet exist in the UK but as the web becomes embedded in daily life, access will become a necessity, not a “nice to have”. The terms of the rights are crucial - should an individual have the right to internet access at home, or is access through places such as public libraries sufficient? If access through public libraries is sufficient, how should that be funded? If delivery of critical public services – for example, talking to GPs via Skype – becomes the norm, then the argument for a right to internet access at home becomes stronger.

In practice, internet access is a commercial service rather than a government-mandated utility. Within the EU, central or municipal governments’ ability to deliver super-fast broadband is restricted by State Aid rules. For example, in Wales, where economically disadvantaged areas are also often broadband “not spots”, actual delivery of £12.1m of UK government aid must await EU State Aid clearance. 

There is also the global dimension. If internet access is a fundamental human right, then it must be a right everywhere. Again, funding is a key issue. On the (arguably) even more fundamental issue of access to electricity, UN and World Bank reports estimate that up to 1.2 billion people worldwide are not connected. With no power, internet access remains a distant dream.

Net neutrality: can it last?

When using the web, the data packets sent and received by individuals travel across the internet on a neutral basis, with no particular type being given priority. As designed, the internet does not care who is connected, what the content of a data packet is, or what hardware/software is being used to send them. Online gaming jostles with business and government traffic for bandwidth.

Given the rise of media-rich content, and the bandwidth – for which, read carriage costs – required to deliver them, many communications operators want to distinguish between traffic and apply differing rules. Priority access would come at a price. 

Consequently, even if a clear, guaranteed right to net neutrality existed in the UK, there would be tension between net neutrality and network management. Operationally, an ISP must prioritise certain types of data packet, such as voice, over others – for example, content.

Privacy and surveillance

Edward Snowden’s whistleblowing has revealed the extent to which data packets are subject to mass, organised and global governmental surveillance – regardless of the laws in each jurisdiction.  Snowden revealed that many of the world’s largest internet companies allow the US government back-door access to data. Since then, more has come to light, ranging from bulk collection of webcam images to real-time monitoring of social media. 

If citizens are willing to dispense with privacy, governments might credibly argue that there is no pressing need to protect it

Malcolm Dowden, Charles Russell LLP

Malcolm Dowden, Charles Russell LLP

The United Nations has resolved that the right to privacy is protected online as it is offline, reaffirming that no one should be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, and the right to the protection of the law against such interference.

In the UK, the Human Rights Act and Data Protection Act confer some right to privacy. However, spies like exceptions and it is not a matter of whether we have the laws in place, but how we enforce them and what our oversight looks like. 

In any event, internet users frequently and freely click to accept online terms of business that effectively waive privacy to reach their desired goods or services. Social media also thrives on citizens’ lack of an effective edit function. If citizens are willing to dispense with privacy, governments might credibly argue that there is no pressing need to protect it.

Freedom of expression is perhaps the right on Tim Berners-Lee’s list about which the UK probably needs to worry the least. There is a healthy culture of freedom of expression and a vibrant press and blogging culture. However, even on this point, vigilance is required.

For example, business networking service LinkedIn was recently criticised for blocking access to posts marking the anniversary of the Tiananmen Square massacre. Blocking was not strictly required, as LinkedIn has no servers on mainland China. However, LinkedIn’s commercial concerns prevailed, and censorship applied.

One final thought, if you think this doesn’t matter. What would you do if a policeman, a spy and the tax man teleported into your living room and set up camp? How is this any different?

Vanessa Barnett (pictured above) is a partner, and Malcolm Dowden a consultant in technology, media and telecoms at law firm Charles Russell LLP.

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