Recognising Access to the Internet as a Fundamental Right: Political, Socio-economic, and Legal Perspectives

1. Introduction

The evolution of the internet has transformed it into a critical resource in modern life, serving as a backbone for communication, information dissemination, and economic activity. In Kenya, an ever expanding ICT sector has ensured the continued penetration of the internet, which is at 48%, with 27.4 million active users in the country as of 2025. For the Kenyan government, there is a continued intention to increase internet accessibility by expanding the digital economy through skills, broadband connectivity and infrastructure, as a means of driving digital transformation of the country. This is in recognition of the increased reliance on digital platforms for essential services, education, employment, and access to information. The necessity for universal internet access was also highlighted by the Covid-19 pandemic, where connectivity enabled the continuation of educational, business and professional activities. Unfortunately, the growing dependence on the internet has revealed a glaring problem; the digital divide. Many communities remain marginalized due to a lack of access to the internet, which excludes them from engaging their civil, digital and political rights, while imposing economic barriers due to lack of access to the digital economy. Further, the absence of internet access can exacerbate existing inequalities for these communities, leaving vulnerable populations without the tools necessary to participate fully in society.

A case for the right to internet access may be made quite swiftly when it is framed as a premise to affirming a primary right, like freedom of expression, rather than a primary right itself. That is to say that, to effectively and completely satisfy the right to freedom of expression in this digital world, the right to access the internet must also exist. Here, one would cite Kay Mathiesen, who argued that just as the advent of the printing press gave way to the freedom of the press, the right to access the internet ought to also be recognised as its own right as it ascends to preeminence as the primary conduit for accessing information.

In line with this, this article assesses the question of whether internet access should be considered a fundamental human right. The article recognizes the persistent digital divide as a significant barrier to universal internet access in Kenya and across East Africa, which limits access to information and the freedom of expression, while also restricting economic opportunities and cultural participation for these populations. In this regard, the article recognises the status of access to the internet as a right that facilitates access to political, economic and cultural rights. By exploring the implications of such recognition, the article highlights how connectivity empowers marginalised communities, fosters civic engagement, and enhances democratic participation. Additionally, it examines how internet access facilitates economic development and cultural expression.

2. Access to the internet and political rights

To fully appreciate access to the internet and its connection to political rights, we would take the approach of a theoretical investigation. The realm of political rights relies on this methodology, such that by situating the analysis within a theoretical context, we would better assess the normative implications of digital inclusion and exclusion, and to propose informed, rights-based approaches to internet governance. This is also necessary as we examine how traditional rights are evolving in the digital age.

One such theory is the digital rights theory which refers to the conceptual framework that addresses the rights and freedoms of individuals in the digital environment. This theory encompasses the evolution of human rights in the context of digitalization, including the internet, big data, cloud computing, and artificial intelligence. Digital rights refer to the human rights and legal entitlements that allow individuals to access, use, create, and publish digital media. These rights are closely tied to traditional human rights, with its key components being: first, the freedom of expression without undue interference from governments or corporations. Second, the right to access information freely without censorship or barriers. Lastly the right to privacy and data protection which includes control over the collection, use and storage of personal data, surveillance and data breaches.

Digital rights theory is underpinned by various ethical frameworks that support the argument in favour of the internet as a fundamental right. The first ethical theory is utilitarianism which posits that actions should result in the greatest good for the greatest number. In line with this theory, access to the internet can enhance overall societal welfare by providing access to educational resources, economic opportunities, and platforms for civic engagement. Conversely, according to deontological ethics, individuals have inherent rights that must always be respected irrespective of the outcomes. Recognising access to the internet aligns with the view that all humans deserve equal opportunities to participate in society.

All in all, digital rights theory provides the conceptual basis for the claim that access to the internet ought to be a right. As the theory highlights, core human rights such as freedom of expression, access to information, and privacy are now exercised primarily in digital spaces. The internet has become essential for political participation, public discourse, and holding governments accountable. Without access, individuals are effectively excluded from the digital public sphere and denied the practical enjoyment of these rights. Therefore, under digital rights theory, internet access is not merely a technological benefit but a necessary condition for the realization of fundamental political rights.

Next, digital sovereignty refers to the notion that states should have control of their respective digital environments, including data governance and internet infrastructure. Key features of digital sovereignty include: first, data localization which refers to states requiring data about their citizens be stored within national borders to ensure compliance with local data regulations. Second is regulatory frameworks developed by states to govern online activities to protect citizens while balancing economic interests. Lastly, censorship and control over internet access usually by governments to maintain political control, raising ethical concerns about freedom of expression. Digital sovereignty theory, while centered on state control over digital spaces, can also be used to support the overarching claim being put forth. By recognizing the internet as a critical facet of governance, the theory affirms its (the internet’s) centrality to modern life and political participation. If states assert authority over digital infrastructure and data to protect national interests and citizen welfare, they also bear the responsibility to ensure that all individuals can meaningfully access and use the internet. This then pronounces duties such as providing equitable access, preventing unjustified censorship, and promoting inclusive digital policies to achieve other rights. In this way, digital sovereignty seems to justify state involvement in the digital arena and implies a duty to guarantee internet access as part of protecting and fulfilling citizens’ fundamental rights.

Cyber citizenship is the theoretical idea that extrapolates the concept of citizenship into the digital realm. The theory postulates the individual responsibilities and rights online through two key substratums: first, active participation in online communities, advocating for rights and holding governments accountable for their actions online. Second, digital literacy to safely navigate the internet. Finally, community engagement through collaboration among individuals to foster inclusive digital environments where different voices are heard. If individuals are to fulfill their roles as digital citizens by actively participating in online communities, holding governments accountable, and engaging in inclusive digital discourse, then access to the internet becomes a foundational requirement. The theory highlights that rights and responsibilities in the digital space are inseparable from connectivity and digital literacy. Without internet access, individuals are excluded from exercising their digital citizenship, undermining their ability to participate fully in civic and political life. Thus, cyber citizenship theory reinforces the argument that access to the internet is essential for realizing modern forms of democratic engagement and, therefore, should be treated as a human right.

3. Access to the internet and socio-economic rights

In Africa, there remain significant barriers to accessing internet and digital services among people in rural areas, women and persons with disabilities. These concerns have been recognised in various efforts, with the fourth cycle of Kenya’s Universal Periodic Review (UPR) highlighting the persistent digital divide, particularly in rural regions, and urging the government to invest in infrastructure, promote digital literacy, and reduce access barriers for marginalized groups, including women and persons with disabilities, to ensure equitable digital inclusion. Research also recognises that access to the internet bridges digital divides, alleviating poverty, improving access to education, health, gender equality, and overall economic development. World Bank researchers found in 2021 that access to mobile broadband in Tanzania, particularly 3G networks, significantly improved household livelihoods. Individuals residing in areas with 3G coverage successfully shifted from self-employed agricultural work to more lucrative non-farm employment opportunities in retail and services. Notably, skilled women benefited from this shift as they transitioned from self-employed farming – which typically offers lower income and less stability – into more stable and better-paying positions.

The internet also serves as a crucial tool for education by enabling remote learning opportunities that can bridge gaps in traditional educational systems. For instance, during the pandemic, those with internet access could continue their education through virtual classrooms and platforms while those without were left behind. At least 49% of school children in Eastern and Southern Africa did not participate in remote learning, while their peers had access to continued learning. This divide is likely to have repercussions that affect these children’s future access to opportunities in higher learning and, consequently, in the job market. Accessing the internet also impacts the right to health by enabling access to health information online that can empower individuals to make informed decisions about their well-being, particularly during public health crises. The Covid-19 pandemic exemplified the importance of reliable internet connectivity for accessing real-time information about health guidelines and services. Additionally, internet access plays a pivotal role in promoting gender equality since digital platforms empower women by offering opportunities for entrepreneurship, education, and advocacy. Women in rural areas, for example, can start businesses or engage in digital workspaces and make a living. Moreover, internet access is increasingly recognised as comparable to other infrastructural rights, such as electricity and clean water. Just as these resources are essential for basic living standards, the internet is becoming a necessity for political and economic participation. Thus, the lack of connectivity can perpetuate cycles of poverty, as individuals without access are often unable to secure employment or engage in economic activities that require digital literacy.

The digital economy has the potential to reduce unemployment and stimulate growth for African economies through online job platforms, e-commerce, access to global markets and training resources. This is through the enhancement of employability of African youth through online training programs, which equip them with marketable skills in fields like technology, design, and digital marketing. Particularly, extending internet access to rural areas has demonstrated huge economic benefits, where farmers can use online platforms to access market prices, weather forecasts, and agricultural training, resulting in increased productivity and income. Rural youth in Africa can also gain access to educational resources, bridging the learning gap between urban and rural schools and accessing global professional opportunities. Thus, by bridging the digital divide, Africa continues to foster inclusive economic growth that benefits all parts of society.

4. Access to the internet as a human right in legal instruments

Existing international human rights frameworks such as the Universal Declaration on Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant of Economic, Social and Cultural Rights (ICESCR) have not expressly recognised access to the internet as a fundamental right. However, the Human Rights Council (HRC) has addressed access to the Internet in relation to other rights such as the freedom of expression recognised under Article 19 of the UDHR and Article 19 (2) of the ICCPR. The HRC in its general comment No. 34 of 2011 affirmed that the same rights people have offline must be protected online, specifically acknowledging that freedom of expression and freedom of the media extends to the digital world, and obligating state parties to “take all necessary steps” to ensure that people have access to these new frontiers of media and expression. In a 2021 resolution, the Human Rights Council called for the protection of internet access as part of a broader commitment to upholding human rights, including the right to development. This clear and consistent framing of access to the internet as essential for the enjoyment of other human rights reflects the growing recognition of its fundamental role in contemporary society.

At the same time, the African Commission on Human and Peoples’ Rights (ACHPR) has emphasized the pivotal role of the internet in enabling human rights. In a 2016 resolution, the Commission recognized the internet’s transformative potential in advancing rights like freedom of information and expression, urging states to eliminate barriers such as internet shutdowns and restrictive laws to ensure an open digital space. Subsequently, the Commission’s 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa reinforces the internet’s necessity for public participation and governance, highlighting its role in fostering civic engagement and access to information. In the face of increased internet shutdowns on the continent in 2024, the Commission adopted the “Resolution on Internet Shutdowns and Elections in Africa”, which addresses internet shutdowns during elections, asserting that universal, equitable, and affordable internet access is essential for freedom of expression and democratic participation. These efforts by the African Commission strongly indicate that, while not a standalone right, internet access is crucial for realising human rights, including those guaranteed under the Banjul Charter such as the freedom of expression, participation in government, and the right to development, as it facilitates socioeconomic progress, civic empowerment, and equitable access to opportunities vital for inclusive development.

While Kenya has not formally recognised the right to access the internet, some countries have done so through varied approaches. For instance, the Estonian parliament in 2000 enacted the new Telecommunications Act that included internet access in its universal service obligations list under Article 5, thereby declaring it a basic human right. In 2008, Greece amended its Constitution to include Article 5A(2), which guarantees the right to participate in the information society and places a corresponding obligation on the state to facilitate access to electronically transmitted information. Most notably, Finland’s Ministry of Transport and Communication later passed a decree in 2009 stating that every citizen must have access to 1 Mbps (megabit per second) broadband connection as a universal service, making it the first country to recognize broadband as a legal right. In the same year, the Constitutional Council of France declared internet access a basic human right with a specific emphasis on its significance for freedom of expression and communication.

In case law, the ECOWAS Community Court of Justice, in Amnesty International Togo & Others v. The Togolese Republic, ruled that Togo’s internet shutdowns during protests violated freedom of expression under Article 9 of the Banjul Charter, emphasizing internet access as vital for civic engagement and socioeconomic rights. An earlier Indian case had affirmed similar sentiments, that access to the internet is a fundamental right. At the Kerala High Court in India, in the case of Faheema Shirin v. State of Kerala, where the court held that access to the internet is integral to the rights to education and privacy under Article 21 of the Indian Constitution. The case arose when Faheema Shirin, a student, challenged her expulsion from a college hostel for using her mobile phone beyond restricted hours, arguing that such rules curtailed her access to online resources essential for education. This formal recognition of the necessity of internet access for human rights realisation in the Global South, marks an important shift towards ensuring that individuals can fully participate in modern society and enjoy their human rights in an increasingly digitized world.

5. An opposing view: analysis of the challenges for access to internet as a human right

To this point, a cursory observation indicates that the case to recognise the right to access the internet as a human right is anchored on the idea that the internet is an enabler of other rights. Without the internet, rights such as the freedom of expression, the right to development, and access to education may not fully be realised. Those opposed to recognizing internet access as a human right cite this subsidiary nature of the right, in that it is a tool to support other rights, not a right on its own. In a piece titled ‘Internet Access Is Not a Human Right’, Vinton Cerf, an internet pioneer, argues that this right would merely be an ‘enabler of rights, not a right itself.’ Cerf argues that access to the internet is neither a human right, nor a civil right, where human rights require the subject matter to be critical for humans ‘to lead healthy, meaningful lives’; civil rights, on the other hand, are distinct as they are conferred by law, and are not intrinsic to one’s humanness. In essence, that the internet is ‘valuable as a means to an end, not as an end in itself’.

Challengers of the status of internet access as a human right also raise the digital divide as a major barrier. Due to the disparity in infrastructure development, it is likely that large populations of people in Africa are unable to access the internet, simply because governments are incapable – financially or otherwise – to provide such access. What this means is that such difficulties give rise to a stark digital divide that leaves large swaths of populations without access to the internet. In turn, due to this divide, there is an increase in socio-economic disparities, educational divides, stunted societal growth, and even deepen cultural segregation.

A further challenge to this right is the ethical concerns that may arise in attempting to realise widespread and unlimited access to the internet. There are two distinct, but related ethical concerns; first, while the internet facilitates free expression, unrestricted access can spread harmful content, such as hate speech, misinformation, and exploitation materials. Second, expanding internet access may expose individuals to privacy breaches, government surveillance, as well as corporate misuse of personal data.

Another angle through which this right has been hindered, is through the Courts. In this regard, what appears to come out of the jurisprudence is the recognition that access to the internet is important as an enabler of other rights, but the Courts seem hesitant to outrightly say that accessing the internet is a basic human right. The Ugandan Court, for instance, in Unwanted Witness – Uganda vs Attorney General, tackled the question of a shutdown of social media access, which inevitably raised the question of access to the internet as an enabler of social media access. In detailing her opinion, Justice Catherine Bamugemereire unequivocally, and rightly, stated that the internet is an “enabler to other rights such as the rights to expression”; and while the Ugandan Constitution protects “general rights to freedom of speech and expression under Article 29(1)”, there is no international norm “declared to form a right to the internet”. The Court shied away, then, from making any substantive pronouncement on whether the right to access the internet is a human right.

In the Kenyan case of Law Society of Kenya vs Attorney General, the petitioner submitted that while the right to access the internet is not specifically captured in the Constitution, it ought to be recognised as its own right, given that it is a key enabler of other fundamental rights. Therefore, in the view of the Petitioner, this right should only be limited in accordance with Article 24 of the Kenyan Constitution, which houses the proportionality test. In responding to this claim, the Court agreed with the Petitioner regarding the importance of the internet, but only termed it an ‘important factor in the protection of fundamental rights and freedoms’, without explicitly stating, as the Petitioner did, that the internet ought to be recognised as a basic right. In the Petitioner’s Memorandum of Appeal, they once again claimed in no uncertain terms that the learned judge at first instance erred in failing to declare that access to the Internet is a basic right.

Finally, there is the conceivable question of what role governments would have with such a right. To what degree would governments be obligated to ensure access, and how might they regulate or enforce this right? If recognized as a human right, governments could face immense pressure to invest in infrastructure and subsidize access, potentially diverting resources from other critical areas such as healthcare, education, or poverty alleviation. Equally, one might venture to question what would qualify as a satisfaction of this right. Would connectivity at painfully low speeds constitute the achievement of the right?

6. Responding to the Opposing View:

The critiques outlined above are valid and deserve attention. Recognizing their value, the following recommendations aim to address these concerns directly. They are designed to strengthen the arguments presented here by addressing their weaknesses.

First, the digital divide is a significant challenge, prompting researchers to propose diverse solutions. Shenglin et al. have discussed strategic policy interventions aimed at enhancing infrastructure that are pivotal in narrowing technological gaps, particularly within emerging economies in China and the European Union. Equally critical is the empowerment of educational institutions to deliver robust digital literacy training. Scholars also suggest targeted efforts to ameliorate demographic-specific challenges, including gender disparities to counter digital divides. Likewise, digital literacy initiatives tailored for older adults, as examined by Blažič and Blažič, reveal the effectiveness of customized programs in reducing exclusion. Radovanovic et al., in their work, discuss the importance of apt learning environments, particularly in the context of higher education, offering additional pathways to bridging divides. Furthermore, expanding ICT infrastructure and access in rural and underserved regions is a crucial factor to address infrastructural deficiencies at their roots. All in all, the literature advocates for a highly synergistic amalgamation of policy reforms, educational advancements, and inclusive technological access is vital for fostering equitable digital participation across diverse populations.

Cerf adamantly argues that access to the internet cannot be its own right. The assertion he makes – that the internet is an enabler of rights – does not preclude it from being recognized as a right itself. Many rights recognized in international law are inherently instrumental in their nature. For example, the right to education enables individuals to access other rights, such as the right to work and the right to participate in cultural life, yet it is firmly established as a fundamental human right. Similarly, the internet’s role as a critical enabler of freedoms like expression, assembly, and access to information does not diminish its eligibility for classification as a right. Instead, it reinforces the argument for its recognition, given the interdependence and indivisibility of human rights. Most critically, scholars like Shandler emphasize that certain enablers of rights can evolve into rights themselves when their absence significantly hampers the enjoyment of fundamental freedoms. In essence, acknowledging the enabling function of a right does not diminish its validity; rather, it highlights its foundational role in the architecture of rights.

Cerf also argues that human rights must help humans ‘lead healthy, meaningful lives’, but does not adequately define what these terms mean. One could argue that the internet directly aids people to lead a healthy life, since it connects humanity to a wealth of knowledge on what a healthy life is. This is also invalidated by the enormous role the internet has continually played in providing people with a source of earnings. Equally, within the internet is the most diverse set of sources and works – from Aristotle to Kant – which aid people to find meaning in life, a premise to leading a meaningful life. This is no novel idea, as De Hert and Kloza have argued that denying the internet’s status as a right overlooks its transformative societal role; that the digital age has made the internet a prerequisite for meaningful participation in democratic processes, education, and employment, thereby meeting the criteria outlined for rights that ensure dignity and equality.

There is also the question of financial constraints which may hinder the realisation of such a right. Indeed, it is herein that international cooperation may have a large role to play. International cooperation bears great significance to the globalised state of today’s world. It is not inconceivable then, that for the right to access the internet to become a reality, there will need to be a great amount of cooperation within the international community; both through knowledge and technology transfer and funding. However, more urgently, there needs to be a common push as well as extensive lobbying to ensure that the same is recognised as a right.

Finally, the Courts seem to have shied away from formally recognising the right to access the internet. In the preceding section, this was positioned as a hindrance challenging the recognition of the right. Both the Ugandan and Kenyan Courts in the discussed case law, shied away from formally recognising the right to access the internet as a basic right, but they agreed that the same was an important factor in realising other broader rights. In the Ugandan decision, for instance, the claim that there is no international norm addressing this right is a preliminary point of contention for the authors. Such a position reflects a conservative approach and overlooks the dynamic nature of human rights law, which evolves to reflect societal realities. Waiting for a treaty or global consensus to mandate such recognition would mean that, in the interim, various communities would remain marginalised as they remain without access to the internet. If international precedent is anything to go by, then this clearly has not stopped countries such as Costa Rica from issuing formal recognition.

Furthermore, the Courts termed such access to the internet as either an ‘enabler’ or an ‘important factor’ in recognising broader rights. In our view, this is a problematic and simplistic stance. An enabler is something that facilitates or makes possible the exercise of other things, such as rights or activities. In the context of internet access, it acts as a tool that supports rights like freedom of expression, access to information, or participation in civic life – something that the Courts were happy to recognise. However, terming it an enabler does not mean it is inherently protected or guaranteed – it’s a means to an end, supporting other rights but lacking independent recognition or protection. Being an enabler of a right, there is little positive duty on a government to help universally achieve it. In the Kenyan case, the High Court pronounced itself that the ‘access to internet is controlled by market forces’ thereby essentially relegating it outside the purview of the government. This illustrates how courts or governments can admit an enabler is important without obligating the government to make it available.

A right, by contrast, is a legally recognized entitlement that individuals can claim, and that governments are obligated to respect, protect, and fulfill. Rights are often enshrined in constitutions or international treaties, such as the right to education or freedom of speech, and they come with enforceable duties. If a right is violated, individuals have legal recourse, and governments must provide remedies or take steps to ensure its realization. A right carries a binding commitment, meaning governments must actively work to provide it and prevent its infringement, often with judicial oversight. Were the access to internet a basic right, the Courts would be unable to enshrine the duty to provide such access to ‘the market’; it would behove the government to positively provide such access.

7. Conclusion

The evolution of the internet has irrevocably reshaped the contours of modern life; it seems as though no person across the face of the earth is able to live a meaningful life without it, whether for communication, education, and economic progress. This article demonstrates the political, socio-economic, and legal justifications for recognising access to the internet as a fundamental right. By exploring digital rights, sovereignty, and cyber citizenship theories, it establishes that connectivity is essential for political rights like freedom of expression and participation, as protected under Articles 9 and 13 of the Banjul Charter. The socio-economic analysis indicates that internet availability bridges divides, enhancing education, health, gender equality, and economic opportunities for marginalized populations, aligning with the right to development. Several legal instruments including the ACHPR’s 2016 and 2024 resolutions, as well as the ECOWAS Court’s ruling on Togo, affirm the internet’s vital role in enabling rights. Thus, denying access to this vital resource is tantamount to a denial of opportunities, freedoms, and the ability to participate meaningfully in the modern world. Critics argue that such recognition may face challenges, including financial constraints in bridging the digital divide, ethical dilemmas, and potential misuse for misinformation and hate speech. However, as the article has demonstrated, these barriers are neither insurmountable nor sufficient to negate the internet’s critical role in upholding human freedoms and dignity.

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