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22 Info. & Comm. Tech. L. 1 (2013)

handle is hein.journals/infctel22 and id is 1 raw text is: Information & Communications Technology Law, 2013                     Z Routledge
Vol. 22, No. 1, 1-13, http://dx.doi.org/10.1080/13600834.2013.774517       F M
Can human rights law support access to communication technology?
A case study under Article 10 of the right to receive information
Robin Elizabeth Herr*
Copenhagen Business School, Copenhagen, Denmark
In this article, the author identifies a potential model to prevent undemocratic
interferences of uses of communication technology such as Internet and mobile. The
model is based on two precedent-setting cases decided by the European Court of
Human Rights to judge unjustified restrictions in technical means of transmission
cases. While Autronic AG v. Switzerland stimulates the market to support innovation
and dissemination of technology, Khurshid Mustafa and Tarzibachi v. Sweden
support the adoption of that technology without unjustified restriction. The
combination of these two judgments offers the following features: (1) both negative
and positive obligations of protection; (2) a neutrality principle applied to both
admissibility and to the merits of a case; and (3) a fairly strict balancing test. The
author concludes by arguing that this model could be applicable to all communication
Keywords: access; Internet; Article 10; right to receive; information; technology;
human rights; law; Europe; European court of human rights
1. Introduction
The right to receive information is a basic building block of democratic society.' This fact
becomes clear when communication technology is shut down during a democratic upheaval
in one autocratic country or communication is cut off for 10 minutes on a television set in
another. For citizens in contracting states of the European Convention of Human Rights, the
right is enshrined within Article 10 of the freedom of expression. It encompasses a right to
information through the technical means of transmission, access to state-held information
under certain circumstances and the right of the public to receive information about
issues of public interest.
Interference of the right to receive information makes the technical means of trans-
mission cases at the European Court of Human Rights worthy of study. They tell the
story of how human rights scrutiny can be used to fashion constitutional oversight over a
critical issue: access to communication technology. The role of human rights law in this
area is clear. Access to the technical means of communication promotes the free flow of
information which is a necessary building block for the exercise of many Convention
rights. It also supports the development of a critical and informed citizenry which can
deepen and enhance the quality of democratic participation. Finally, it further contributes
to the self-fulfillment of each individual.2
*Email: rehjurgcbs.dk

C 2013 Taylor & Francis

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