The Development of a Right to Communications

Developing the universal right to communications came into the international context most broadly through the UN Conventions on Human Rights. The logic goes, if we agree that people have the right to access to information, can we demand basic services from governments and private companies at an affordable rate? If that is the case, what sort of elements can be considered the ‘floor’ for standard access to information? One would assume that, like the landline telephone from back in the day, the internet has earned itself an essential and influential place in society. Can we imagine a child who has the right to education, whose government has made the space to be enrolled in school, but who cannot access the internet? From that relative perspective we can observe how environments of unequal access to information can create economic barriers for many who are overly burdened by the individual cost.

The International Convention on Civil and Political Rights covers many issues of human dignity and state responsibilities to its citizens, both through the provision of goods and services as well as promoting the liberty to pursue certain individual goals without hinderance. The right to communications and media, though not explicitly stated, has been interpreted through several Articles of the UN Convention on Human Rights, most strictly to Article 19 and more loosely to Articles 18, 22, and 25.

Article 18, Freedom of Thought, Conscience and Religion

Article 19 (2), “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

Article 22, Freedom of Association

Article 25, “Every citizen shall have the right and the opportunity…(a) To take part in the conduct of public affairs, directly or through freely chosen representatives…(c) To have access, on general terms of equality, to public service in his country.”

As we can see, the larger implications as brought up in Episode 5 are many. Access to political platforms, freedom of association, freedom of expression and all of these may be deeply shaped by one’s ability to create media content, observe media content and to more broadly link us to one another. As such, the United Nations partnered with the ITU in 1947 (enforced by January 1, 1949) to enhance Internet and Communications Technology (ICT) throughout the developed and developing world. “The Commission believes that expanding broadband access to the Internet is key to accelerating economic and social progress everywhere, and it defines practical ways in which countries — at all stages of development — can achieve this, in cooperation with the the private sector (i.e. public private partnerships or P3’s).”

The creation of International Telecommunications Regulations (ITR’s) have worked to create common standards and strategies. Due to its preeminence, the ITU has taken the helm and is considered the forefront of the promotion of cooperation and the hopes for communications as a human right.

The Canadian Context

Canada’s Telecommunications Policy is encompassed by the Telecommunications Act (S.C. 1993, c.38 ) while the outlines of Canadian Human Rights is encompassed by the Canadian Human Rights Act (R.S.C., 1985, c. H-6). Each Act establishes separate Commissions which in turn, establish separate quasi judicial courts. While Canada has developed a quasi-judicial court to administer justice in accordance with the Telecommunications Act and the Human Rights Act separately, Canada remains awash in an oligopoly that produces some of the highest costs in telecommunications among developed and developing economies.

In fact, Canada’s government used to have a larger hand in media distribution but has since moved to the regulation of privatized distributors and content creators. One could argue with merit that the privatization of such industries has lead to the advancement of technological development in telecommunications that has increased broader geographical access, the question is now to what extent can we demand services rates and costs to provide the poorest households with more equal access to telecommunications services.

Ben Klass’ court claims opposite Bell focus strictly on the company’s use of vertical integration and other practices to garner Bell’s unfair advantages in the national marketplace (and subsequent violations, including ‘undue preference’), which resides under the broader jurisdiction of the Telecommunications Commission. Their narrow mission in adjudicating matters does not take into account the Canadian Human Rights Act, but the issue of access may alternatively be tackled under the Telecommunications Act through Part III, Rates, Facilities and Services, which outlines the approval of telecom rates by the Canadian government. However, these strict processes leave little room for the interpretation of the Canadian Human Rights Act, specifically with regard for the section on the prohibition of Discriminatory Practices. Unless the issue is moved to the higher court and posed under the broader human rights context with a case that suits this purpose, we continue to make due with the cases we have within these segregated courts.

While Canada has developed a quasi-judicial court to administer justice in accordance with the Telecommunications Act and the Human Rights Act separately, Canada remains awash in an oligopoly that produces some of the highest costs in telecommunications among developed and developing economies.

Technological advances in telecommunications are fast and ongoing, which makes it extremely time intensive and costly to regulate and adjudicate under this current procedural regime. Even then, what is considered ‘basic access’ remains hotly contested on an international scale. While a landline phone and limited cable television access were necessary for the administration of public services, association and political engagement, now we could consider outdated compared to cell phones and the internet. And when the next big media platform comes along, how quickly will we appropriate new access rules for basic human rights? What this issue highlights is that human rights, as a whole, is a process that constantly evolves and the access to which must be constantly evaluated and treated as such.

While this issue may seem hotly contested, the process as a whole, while arduous, seems to be working, and both Bell and people such as Ben Klass should be applauded. A handful of court cases is not going to mark the end of the debate, but should rather be considered a test of democracy as a whole. It acts as a platform, negotiating the lines between our standards of access and the provision of public goods, specifically the most efficient and cost-effective administration of such goods. The willingness of private sector to come to the table as a rational partner to realize such goals establishes a growing precedent of cooperation, balancing the line between the economics of innovation and our evolving interpretations of basic human rights.

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