Access to the Internet Submission to ALRC IP 46 Dr Lucy Cradduck LLB, LLM(TechLaw), SJD (QUT) Solicitor Senior Lecturer, QUT Law 24 February 2015 This submission is directed to issues arising in respect of the to need recognise and support for all Australian residents and citizens. As such it addresses the access to the internet following questions only: Questions 2-1 What general principles or criteria should be applied to help determine whether a law that interferes with freedom of speech is justified? Question 2-2 Which Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified? The focus of IP46 is to ascertain the extent to which Commonwealth laws on “encroach common law rights, freedoms and is defined by the Oxford English privileges”. Encroach Dictionary to mean to that is to on a rights, “intrude person’s territory, personal life etc”, interfere with that person. In Chapter 2, is articulated to include the freedom of speech freedoms of and to If a law communication, engage in the political process and society. interferes with these freedoms then the are encroached. individual’s rights In the context of the internet, there is little if any common law rights, internet-specific freedoms and privileges. However, this does not mean that none are applicable or that law, or a lack thereof, does not encroach on our ability to access the internet. Therefore it is submitted that the criteria that should be applied to help determine whether a law (or lack of a law) is justified in respect of the freedom of speech the internet is first to à propos consider relevant international policy and obligations; and second, the impact of the domestic law (or lack of law) in practice. The essential nature of the ability of the individual to self-determination and participation in social, political and economic life are recognised by Articles 1, 3 and 25 of the International These rights are not restricted to activities and Covenant on Civil and Political Rights 1966. engagement in the The Rights Resolution on ‘real world’. United Nations’ Human Council’s of July 2012 affirms that the Promotion and Protection of Human Rights on the Internet individuals have the same rights as (Article 1). online offline
Access to the Internet Submission to ALRC IP 46 Dr Lucy Cradduck LLB, LLM(TechLaw), SJD (QUT) Solicitor Senior Lecturer, QUT Law 24 February 2015 This submission is directed to issues arising in respect of the need to recognise and support access to the internet for all Australian residents and citizens. As such it addresses the following questions only: Questions 2-1 What general principles or criteria should be applied to help determine whether a law that interferes with freedom of speech is justified? Question 2-2 Which Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified? The focus of IP46 is to ascertain the extent to which Commonwealth laws “encroach on common law rights, freedoms and privileges”. Encroach is defined by the Oxford English Dictionary to mean to “intrude on a person’s territory, rights, personal life etc”, that is to interfere with that person. In Chapter 2, freedom of speech is articulated to include the freedoms of communication, and to engage in the political process and society. If a law interferes with these freedoms then the individual’s rights are encroached. In the context of the internet, there is little if any internet-specific common law rights, freedoms and privileges. However, this does not mean that none are applicable or that law, or a lack thereof, does not encroach on our ability to access the internet. Therefore it is submitted that the criteria that should be applied to help determine whether a law (or lack of a law) is justified in respect of the freedom of speech à propos the internet is first to consider relevant international policy and obligations; and second, the impact of the domestic law (or lack of law) in practice. The essential nature of the ability of the individual to self-determination and participation in social, political and economic life are recognised by Articles 1, 3 and 25 of the International Covenant on Civil and Political Rights 1966. These rights are not restricted to activities and engagement in the ‘real world’. The United Nations’ Human Rights Council’s Resolution on the Promotion and Protection of Human Rights on the Internet of July 2012 affirms that individuals have the same rights online as offline (Article 1).
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