Explanatory Memorandum

1. The Guide emphasises principles and considerations which are deemed to be intrinsically linked and generally applicable to all the human rights and fundamental freedoms contained in it, including access to the Internet and the principle of non-discrimination.

2. Although access to the Internet is not yet formally recognised as a human right (noting differences in national contexts including domestic law and policy), it is considered as a condition and an enabler for freedom of expression and other rights and freedoms. Consequently, the disconnection of an Internet user could adversely affect the exercise of her/his rights and freedoms and could even amount to a restriction of the right to freedom of expression, including the right to receive and impart information. The Court has stated that the Internet has become today one of the principal means for the exercise of the right to freedom of expression and information by individuals. Freedom of expression applies not only to the content of information but also to the means of its dissemination, since any restriction imposed on the latter necessarily interferes with the right to receive and impart information. Such interferences can only be accepted if they meet the conditions stated in Article 10, paragraph 2 of the ECHR as interpreted by the Court. A measure that is bound to have an influence on the individuals' accessibility of the Internet engages the responsibility of the State under Article 10.

3. Against this background, the Guide states that Internet users should not be disconnected against their will except when it is decided by a court. This, however, should not be understood as pre-empting legitimate disconnection measures such as in the context of obligations stemming from contractual obligations. Internet consumers who do not pay for their service may be disconnected from the Internet. However this should be a measure of last resort. Moreover, children can be subjected to discontinuation of access to the Internet in the context of exercise of parental control over Internet usage of the Internet, depending on the child's age and maturity.

4. Internet users should have effective remedies against measures of disconnection from the Internet when this is not decided by a court. This includes Internet service providers informing Internet users about the grounds and legal basis for the disconnection measure and the procedures for objecting to it and requesting reinstatement of full access to the Internet. Such requests should be treated within reasonable time limits. Moreover, every Internet user, in the exercise of his right to fair trial, should be able to request a review of the disconnection measure by a competent administrative and/or judicial authority. These due process aspects are summarised in the last section of the Guide, which is entitled "Effective Remedies".

5. Positive action or measures taken by State authorities to ensure that everyone is connected to the Internet is another dimension of the issue of access to the Internet. The Committee of Ministers of the Council of Europe has recommended to its member States to promote the public service value of the Internet. This is understood as "people's significant reliance on the Internet as an essential tool for their everyday activities (communication, information, knowledge, commercial transactions) and the resulting legitimate expectation that Internet services be accessible and affordable, secure, reliable and ongoing." This section informs the user that she/he should have Internet access which is affordable and non-discriminatory.

6. The right to access Internet content is linked to the right to receive and impart information on the Internet as referred to in Article 10 of the ECHR. The Council of Europe's Committee of Ministers has affirmed that every Internet user should have the greatest possible access to Internet-based content, applications and services of his/her choice, whether or not they are offered free of charge, using suitable devices of his/her choice. This is a general principle commonly referred to as ‘network neutrality' which should apply irrespective of the infrastructure or the network used for Internet connectivity.

7. Public authorities should make reasonable efforts to facilitate access to the Internet for specific categories of individuals such as those living in remove areas and people with disabilities. This is based on the principle of universal community service which is laid down in Recommendation No.R(99)14 of the Committee of Ministers concerning new communication and information services. It emphasises that individuals living in rural or geographically remote areas or those with low income or special needs or disabilities can expect specific measures from public authorities in relation to their Internet access.

8. The expectations of people with disabilities to have equivalent and non-discriminatory access to the Internet as enjoyed by other Internet users is derived from instruments of the Council of Europe which recommend to member States to take action to foster the provision of adequate facilities for the access to the Internet and ICTs by disabled users. Member States should promote affordable access bearing in mind the importance of design, the need to raise awareness among these persons and groups, the appropriateness and attractiveness of Internet access and services as well as their adaptability and compatibility.

9. The principle of non-discrimination should apply to user interactions with public authorities, Internet service providers, content access providers and other companies, users, or other groups of users. The fourth paragraph is a paraphrasing of Article 14 of the ECHR and Article 1 of Protocol 12 of the ECHR, both concerning the prohibition on discrimination.

Please see here the full text of the Explanatory Memorandum.