ONLINE-OFFLINE. Guarantees for Internet access and for disconnection, blocking, filtering and other restrictions on the network and its content

Abstract

The Internet is a new paradigm and access to it has become an essential human need; this must be guaranteed as a human right and with constitutional protection. This right of access to the Internet is taking shape essentially on the basis of the freedom of information. The guarantees of free access to the Internet have been analysed, as well as its social dimension and the obligations to guarantee universal access assumed by public authorities directly or through communications operators. In particular, based on the classic negative dimension of information freedoms, the guarantees against blackout, disconnection, closure, blocking, filtering or other restrictions on access to the Internet and its contents have been specified. In particular, the necessary judicial role for the restriction to the Internet and its contents has been underlined. The ECtHR, the Council of Europe and, more timidly, EU law, have already made great progress in establishing such guarantees. The guarantees that the author affirms derive from the freedom of information (art. 20. 1 EC) interpreted through article 10. 2 EC. In any case, it has been stated that Spanish Constitutional Law has not updated for Internet the strong guarantees provided by the Constituent in 1978.

The author maintains the need for an digital update of the prohibition of censorship or the judicial sequester of publications. As stated, the Spanish legislator does not take the issue seriously. Article 8 Law 34/2002 still raises many doubts as to what kind of authority can restrict the Internet. Article 81 Organic Law 3/2018 recognises a vacuous and symbolic right of access to the Internet, without organic legal nature. Together with the EU, the Spanish telecommunications regulation has been the most serious to date for guaranteeing the guarantee of internet access as a «universal service» (Title III, arts. 23-28 LGT). Internet restrictions on international, European and Spanish regulation, have been examined, a relatively opaque scope. It is affirmed that the doubts of the constitutionality of this regulation will arise with regard to their concrete application. However, the new article 4. 6º LGT, approved in the heat of elections and maximum political tension, does not comply by far with the standards of regulatory quality nor the guarantees that have been maintained here, in addition to failing to comply with the requirements of article 86 EC. Governments of Catalonia and Basque Country have appealed. The author would like an early declaration of unconstitutionality by the Constitutional Court, which will also serve to update its poor doctrine in this area.

Summary:
I.- The hybrid guarantees of Internet access. II.- The varied international, European and Spanish regulation of Internet access restrictions. III.- The guarantees against Internet access restrictions, blocking or filtering. IV - Special judicial guarantees, or guarantees by independent authorities. V.- To conclude. The unconstitutionality of the digital «blackout» or «gag» approved with Royal Decree Law 14/2019