Sofia Ciuffoletti, PhD
University of Florence
L’Altro diritto – European Prison Litigation Network
In examining the case law of the European Court of Human Rights (the Court), the issue of digital justice and access to the Internet forces us to analyse a theoretical question: what is the Internet? a mean or an end. And how does one define a right of access to the Internet? Is it an autonomous human right or it serves to support other rights protected by the European Convention. In that sense, it could be called a sort of protective belt for other rights, much like the right not to be discriminated against((Article 14 of the Convention: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”)).
And if we understand access to the Internet as a human right, what are the implications for the society of captives compared to the people living outside of the prison context?
We will try to propose a decoding of access to the Internet understood as a right in the prison context in the European area, according to the legal reasoning adopted by the European Court of Human Rights, highlighting the positive and negative features and consequences of this legal paradigm.
As a matter of facts, in a number of Council of Europe and other international instruments, the access to the Internet had increasingly been “understood as a right”, and calls had been made to develop effective policies to attain universal access to the Internet 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((Adopted on 28 May 2003, at the 840th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe)), recognizes the need for the removal of barriers to the participation of individuals in the information society on a non-discriminatory basis((Principle 4 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.”)) and the 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. People, communities, public authorities and private entities rely on the Internet for their activities and have a legitimate expectation that its services are accessible, provided without discrimination, affordable, secure, reliable and ongoing. Furthermore, no one should be subjected to unlawful, unnecessary or disproportionate interference with the exercise of their human rights and fundamental freedoms when using the Internet.
Any restrictions to this freedom must not be arbitrary, must pursue a legitimate aim in accordance with the European Convention on Human Rights.
At the same time, recognizing a right to access to the Internet forces us to consider the different accessibility to this right among and within societes and the issue of “digital divide”. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in his report of 16 May 2011 to the Human Rights Council (A/HRC/17/27) firstly refers to the concept of “digital divide” that defines the gap between privileged people with effective access to digital and information technologies, in particular the Internet, and those with very limited or no access at all, which include detainees((UN Human Rights Councils’ Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Report of 16 May 2011 to the Human Rights Council (A/HRC/17/27), §61)). As the UN Special Rapporteur puts it: “without Internet access, which facilitates the enjoyment of a range of human rights, marginalized groups and developing States remain trapped in a disadvantaged situation, thereby perpetuating inequality both within and between States”((The Internet is also defined as ‘a medium by which the right to freedom of expression can be exercised’ and can only serves its purpose if States assume their commitment to develop effective policies to attain universal access to the Internet. “Without concrete policies and plans of action, the Internet will become a technological tool that is accessible only to a certain elite while perpetrating the “digital divide”((Ibid, §60)).
Digital justice or digital divide
Looking at the Court’s case law, the issue of digital justice and access to the Internet can be approached from a twofold perspective. On the one hand, the connection between prisoners’ rights and Internet can be 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. On the other hand, the issue concerns the sensitive area of privacy and data protection.
1.1 Access to information and education in prison
All the legal resoning concerning the rights connected with access to the Internet is grounded on the positivist idea that strictly links internet with human and social progress, insofar that “the spread of information and communications technology and global interconnectedness has great potential to accelerate human progress, to bridge the digital divide and to develop knowledge societies”((UN General Assembly, A / HRC / 32 / L. 20, cited, p.2 and General Assembly Resolution 70/1 Transforming our world: the 2030 Agenda for Sustainable Development)). Internet is also understood as a way of enhancing the rights of freedom of expression and freedom of association, and the protection of privacy online is a necessary tool in order to right to hold and express opinions without interference, and to enjoy the rights of peaceful assembly and association.
Particularly interesting for the prison context is the connection between access to the Internet and the promotion of the right to education, as internet opens up for opportunities of affordable and inclusive education on a global scale. If this is true, then an effective policy and public action connected with access to the Internet would need to take into account the issue of “digital literacy” and the differential enjoyment of the rights connected to internet, finally addressing the question of the “digital divide”, between and within countries, for “vulnerable” and socially deprived persons.
In the recent attempts to translate the right of access to the Internet into an internationally recognized law, the Resolution on the the promotion, protection and enjoyment of human rights on the Internet of the United Nations Human Rights Council((UN General Assembly, A / HRC / 32 / L. 20, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development))denounces the digital divide and stresses the need to reduce it in relation to certain categories of vulnerable subjects, mainly women and persons with disabilities.
Now, the notion of digital divide paired with the question of vulnerability and social disability is relevant in order to address the issue of access to the Internet in prison. Considering the Court’s case law, legal vulnerability of prisoners has been affirmed, on a case by case perspective, but starting from the consideration that the essence of imprisonment is not only state control in physical well-being, but also the level of dependence and subjection from state authority and control in the area of personal autonomy, access to information and legal information in particular and contacts with the outside world. The legal vulnerability of prisoners should be assessed according to an analysis of the prison context and the specific condition of deprivation of liberty.
From the notion of digital divide, we can draw two considerations: on the one hand, a contextual notion of vulnerability forces us to consider the prisoners among the categories of vulnerable persons. On the other hand, considering the principle of the “maximum conformity” of prison life to outside life expressed by an instrument of soft law((European Prison Rules, Part I, Basic Principles, 5: Life in prison shall approximate as closely as possible the positive aspects of life in the community)), we should assess the extent to which the restrictions imposed on prisoner widen not only the digital divide, but the same anthropological divide that is in place today in our penitentiary institutions (as in a big part of our total institutions).
We can trace the development of the legal reasoning on the issue of access to the Internet in prison following the steps of the European Court of Human Rights and using three recent cases that have opened the question and presented the Court with the necessity to interpret access to the Internet as a right in the prison context.
Firstly, the Court has tackled down this situation in the case Kalda v. Estonia((Kalda v. Estonia, n. 17429/10, 19 January 2016)), where a violation of Article 10 was found because of restrictions placed on prisoners’ access to certain Internet sites. The websites to which the applicant had requested access predominantly contained legal information and information related to fundamental rights, including prisoners’ rights. The accessibility of such information promoted public awareness and respect for human rights. The national courts used such information and the applicant therefore also needed access to it for the protection of his rights in the court proceedings. When the applicant lodged his complaint with the domestic courts, Estonian language translations of the European Court’s judgments against the respondent State were only available on the website of the local Council of Europe Office to which he had been denied access. As the Court affirms:
52.The Court cannot overlook the fact that in a number of Council of Europe and other international instruments the public-service value of the Internet and its importance for the enjoyment of a range of human rights has been recognised. Internet access has increasingly been understood as a right, and calls have been made to develop effective policies to attain universal access to the Internet and to overcome the “digital divide” (see paragraphs 23 to 25 above). The Court considers that these developments reflect the important role the Internet plays in people’s everyday lives.
The Court starts by recognizing that: “the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general”((Ivi, §45. See Delfi AS v. Estonia [GC], no. 64569/09, § 133; Ahmet Yıldırım v. Turkey, no. 3111/10, § 48 and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27)). Then, the Court considers that “imprisonment inevitably involves a number of restrictions on prisoners’ communications with the outside world, including on their ability to receive information.”(( Ivi, §46)). No general positive obligation exists for Contracting States to grant prisoners access to the Internet.
This solution appears controversial if we consider the notion of digital divide, a notion that the Court is ready to accept (see §52 of the judgment), in light of the vulnerability of prisoners.
The only reason the Court found a violation of Article 10, then, lies on the fact that the State, in this case Estonia, already granted access to the Internet to prisoners. This results in a very uneven situation across European member states and in a limited ability of intervention of the Court in order to implement access to information in prison and to bridge the digital divide gap in prison.
In the subsequent case, Jankovskis v. Lithuania((Jankovskis v. Lithuania, no. 21575/08, 17 January 2017)), a prisoner complained that he had been refused access to a website run by the Ministry of Education and Science, thus preventing him from receiving education-related information in breach of Article 10 of the Convention.
The interest of this case lies in the fact that the Court interprets the case not considering access to the Internet in itself, but rather the access to a specific kind of information and therefore as a support to the right to education and to the same possibility of rehabilitation in prison. As a matter of facts, the applicant’s complaint concerned a particular means of accessing the information in question: namely, that he, as a prisoner, wished to be granted access – specifically via the Internet – to information published exclusively on a website belonging to the Ministry of Education and Science. The Court then reiterates that “imprisonment inevitably entails a number of restrictions on prisoners’ communications with the outside world, including on their ability to receive information”((Jankovskis v. Lithuania, cit., §55)). Therefore, as already affirmed in Kalda, (see Kalda, cited above, § 45), Article 10 cannot be interpreted as imposing a general obligation to provide access to the Internet, or to specific Internet sites, for prisoners. Nevertheless, the Court considers that access to information relating to education is granted under Lithuanian law.
Therefore, there is a relevant difference between Kalda and Jankovskis cases in that in Lithuania, not only no law exists allowing prisoners to access the internet, 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. Still the Court found a violation of Article 10, considering “the interference unnecessary in a democratic society”. First of all the Court argues that access to the internet has recently and increasingly “been understood as a right”, and calls have been made to develop effective policies to achieve universal access to the Internet and to overcome the “digital divide” (see Kalda, cited above, § 52).
The link between the internet access and the right to information is made by the Court pointing out the fact that “certain information is exclusively available on Internet” (Jankovskis, §62), therefore establishing the nature of internet as a tool in order to receive information which relate to education. The Court goes even further to affirms that it is not only a generic right to information that is at stake in the present case, but the right to social rehabilitation itself, since “it is not unreasonable to hold that such 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” (§59). The Government, therefore, has a double responsibility: on the one hand, it has totally omitted any consideration on the nature of the site in question; in fact public platform, entirely managed by the Ministry; this should have been a suitable fixed point at least to dilute the risk linked to the security and to the proliferation of criminal activities. Secondly, the national authority is reproached for having taken into consideration the right to access to the Internet as such, ex se, without understanding how in reality it is “only” a tool aimed at a particular purpose, the educational one and at the end, the social rehabilitation. According to the Court, therefore, the Internet is not yet a right stricto sensu, but can be a tool in order to exercise fundamental rights. A means and not an end.
Finally, the Court has examined access to right in prison in the case Mehmet Reşit Arslan et Orhan Bingöl v. Turkey((Mehmet Reşit Arslan et Orhan Bingöl v. Turkey, nos. 47121/06, 13988/07 et 34750/07, 18 June 2019)). This case marks the strongest reasoning point in connecting access to the Internet and the right to education. As a matter of facts, the specific angle of perspective under which the Court examines access to the Internet in prison is Article 2 Protocol 1 to the Convention((Article 2 of Protocol No. 1:“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”)), one of the few social rights expressly protected under the Convention system (§57).
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 specially designated by the prison authorities in order to pursue their higher education. Their requests were denied by the prison authorities and their appeals against those decisions were unsuccessful.
As in Lithuania, the relevant Turkish legislation allows for the use of audio-visual training resources and computers, with Internet access, authorised under supervision in rooms set aside for that purpose by the prison authorities in the context of rehabilitation programmes or training courses((Under section 67(3) of Law no. 5275)).
Specifically concerning access to the Internet as a way to make right to education effective, the Court relies 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 specific establishment, nevertheless an effective access to existing education establishment needs to be provided: “access to educational institutions existing at a given time is an inherent part of the right set out in the first sentence of Article 2 of Protocol No. 1 […]. This provision applies to primary, secondary and higher levels of education ((See Leyla Şahin v. Turkey [GC], no. 44774/98, §§ 134 and 136, ECHR 2005-XI)”((Velyo Velev v. Bulgaria, no. 16032/07, 27 May 2014, §31)).
The use of computers and an effective access to the Internet are seen by the Court as “an indispensable material means to ensure the genuine exercise of the right to education, since it enabled the prisoners to prepare for examinations to be admitted to higher-education institutions and potentially to pursue their studies.”((Mehmet Reşit Arslan et Orhan Bingöl v. Turkey, cit., §53)).
In this case, as in Kalda, the State provided access to the Internet in prison at certain conditions and, as in Jankovskis, the Court is building the protection of access to the Internet directly linking it to the right to education. Accordingly, the violation is found on the ground of the proportionality test. Concerning the availability of computers in prison and to the applicants, as well as access to the Internet, even though the security considerations relied upon by the national authorities and the Government concerning the terrorist applicants could be regarded as relevant, the national courts had not carried out any detailed and personalized analysis of the security risks and had failed both to weigh up the various interests at stake ((Mehmet Reşit Arslan et Orhan Bingöl v. Turkey, cit., §69)).
If this is the trend line concerning the case law on access to the Internet, there exist areas in which the Court will be called in the next future to interpret the role of Internet in prison from other and potentially more critical perspectives. As a matter of facts, a trend has been retrieved in some European countries concerning the digitalization of justice and trial, as well as the possibility to replace physical meetings with family members, lawyers and social operators through the use of softwares for online communication. The Italian case is paradigmatic of this trend: the newly introduced legislative decree n. 123/2018 has foreseen the possibility for prisoners to participate to Surveillance hearings through videoconferences. This seems to be a necessity more dictated by the necessity to cut the budget for prison transfer, than to answer to the need to guarantee the personal participation of prisoners to the trial. The physical presence of the prisoner in front of the Court is pivotal in order to guarantee the right to a fair trial and is important to reduce the prison seclusion and the material distance between the detained person and the Court.
1.2 Privacy and Data Protection
Digital justice can also infringe upon Article 8 rights concerning privacy and data protection. The issue seems particularly relevant as it involves the storage and process of personal data and special category of personal data, such as data relating to criminal convictions and offences. The new Regulation (EU) 2016/679 ((General Data Protection Regulation)) include a specific provision for such data((Art. 10 GDPR Processing of personal data relating to criminal convictions and offences: Processing of personal data relating to criminal convictions and offences or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorised by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. 2Any comprehensive register of criminal convictions shall be kept only under the control of official authority))which imposes to State authority the duty to process these data “providing for appropriate safeguards for the rights and freedoms of data subjects”.
Government is responsible of protecting personal data of the prisoners. Most Prison Services act as registrar and european along as national legislation defines e.g. which registers it is responsible for, what is considered to be personal data, who has access to personal data, to whom the Prison Service is entitled to hand over such data and what are the data retention periods. We can expect a growing litigation at a european level on data protection of prisoners.
In the prison context, this provision appears particularly relevant as an Italian case can show. The case concerns the prisoners of the female section of Sollicciano prison in Florence. After a case of overdose death in prison, the prison administration asked to the female prisoners the informed consent to undergo a drug test, in order to prevent future possible episodes. Many prisoners agreed and subsequenly the results of the test had been used to issue disciplinary sanctions. The Obudsman of Tuscany denounced the case to the Italian Ombudsman for the protection of personal data and an application was lodged to the civil judge who has recently issued a judgment sanctioning the violation of the right to privacy.
It could thus be said that, in the casuistic perspective of the Court, the link made in Jankovskis between the use of the Internet, the right to education and social reintegration is perhaps the most powerful weapon in terms of legal reasoning and prison litigation.
Keeping together the notions of digital divide, vulnerability, right to treatment and to social rehabilitation there can be spaces to challenges the practices of prohibiting or strictly limiting access to computers and to the Internet for prisoners.
At the same time, some issues remain unsolved and need to be tackled down and decoded at a legal level. The issue of rehabilitation in prison via the Internet could poses a real threat in terms of actual social inclusion. The replacing of the physical and real connection between the society of captives and the society of the freemen and freewomen, as well as the participation of the outside community in prison. The monitoring and the surveillance of prison institutions and prison conditions cannot be rendered virtual. As well as the position of state-control in which prisoners live calls out for the need to resist to the appeal of making our prison “virtually” accessible and digitally visible and therefore more and more invisible.