Cyberspace bill of rights


Por Emilio Suñé Llinas

We, inhabitants of this meta-space that is cyberspace, in which there cannot exist any territorial sovereignty, proclaim the need to establish a fair order of conviviality, which must prevent the subhuman and immorally constant predominance of the strong over the weak.

Aware that we are subject to interested restrictions of the free flow of information, which to the most disadvantaged supposes even the denial of their condition as cybercitizens, with the consequent attack on the dignity of the peoples who need protection and defense the most.

Aware that the network, as well as the entire global society, is not subject to the designs of the Peoples, but to the power of a global plutocracy, supported by the bureaucracies of States, of certain international organizations, and above all, the great World Powers.

Aware that this situation creates oligopolies, and even monopolies of information, which is the greatest economic value and one of the greatest moral values, because it is the  basis of knowledge and one of the highest foundations of culture.

Aware that the information oligopoly, together with the bureaucracies of States and World Powers, as well as with some international organizations, instead of protecting the free flow of information and dissemination of knowledge and culture, they restrict it, and instead of  respecting individual privacy and the confidentiality of their communications, they exert a systematic espionage and a diffuse control of individuals, with the indiscriminate storage of data which allows them to obtain personal profiles.

Aware of the need for transparency, especially of the detainers of the political power and the great corporations, who know everything about the world’s citizens, whereas citizens have scarce information about powerful people.

Aware that the dynamics of power in cyberspace endanger human dignity, the inviolability of the human being, that is more than a right, because it is the foundation basis of all the individual rights.

Aware that the major attacks hover over the weakest and poorest people, not only those to whom the access to culture is inhumanly denied, but over the children who suffer such violence and exploitation that repulse the moral conscience of mankind.

Aware that against the despotism of  the plutocracy that rules us, and against demagogues, their mercenary accomplices, we must proclaim and preserve the natural right of human liberty and equality, also in cyberspace, and thus search for a remedy to the above mentioned curses, and in turn preserve the freedom of work and trade in cyberspace.

Aware that the need to preserve Cultural Heritage in cyberspace, which means to manage risks to threaten it, that arise basically from the instability due to the speediness of change. It is obliged to assume that we are not only nor basically, face to a technical problem, but face a question that involves transcendental social and organizational aspects, which impose us the need to overcame the concerning state to a state of activity.

Aware also that freedom must go through the minimal intervention of power, which leads us to the need to leave open spaces in cyberspace for self-regulation, always within a legal framework that must truly defend freedom, with the goal to complement this legal framework and to arrive where the hetero-regulation can hardly attempt to get, as the preservation of environmental values ​​of cyberspace, due to the real risk of colliding with the freedom of expression and information. In contrast, self-regulation can make the cyberspace environment clean, tidy, updated and even beautiful.

Aware that the fundamental right of citizens to take part in public affairs, which is almost always merely nominally recognized, has an enormous potential to become true in cyberspace, making it essential to ensure its effectiveness as a nuclear right, within the third generation of political rights.

Aware of the need to establish mechanisms to guarantee the rights declared, it must be created a Cyberspace Ombudsman and a Cyberspace Rights Tribunal, that will be created and put into operation for those public bodies that are pioneers in incorporating this Bill of Rights to the field of legal regulation. Private individuals  will cooperate to achieve these goals by the means at their disposal, notably through self-regulatory instruments.

Aware of the need to build democracy in cyberspace, a “meta-space”, and so consequently an aterritorial democracy, based on a principle of universal cyber sovereignty and a rule of all matters, in a Telecivitas, that are typically cyberspatial.

Aware that before the constituent power of cybercitizens is born in cyberspace, which is desirable to happen, it is imperative to proclaim the constituent ethics of Human Rights in cyberspace, and work for people and States, preferably in the United Nations framework, to change the situation that exists in today’s world and make the finest ideals of mankind.

Therefore, we cybercitizens, enact the following:

Article 1.- Freedom of information is only applied to information as a value.

1. Information, as a legally autonomous value and ultimately as a coexistence value, is necessarily educational, so therefore it involves transmission of knowledge or an impact in raising the moral dignity of people, so that genuine freedom of information concerns only that information that reasonably is able to generate knowledge or to enhance the dignity of the human being.

2. Human Rights in cyberspace refers to information as a value, and should not be confused with the entertainment industries interests, which legal protection must be based on other principles.

3. The cardinal character of freedom of information and of the widest freedom of expression, for any order of coexistence based upon democratic principles and upon the respect for human rights, imposes that both fundamental rights has to be guaranteed and protected with special intensity in cyberspace, as a consequence of informational and expressive nature of cyber-society. All the references made in this Bill of Rights on freedom of information, should also be extended to freedom of expression, whenever it is appropriate to it.

Article 2.- Free and equal access to information.

The essential and inviolable dignity of human being inexcusably requires, in cyberspace, free access to information on legal equality conditions, both in a formal and a material sense. It is recognized the right of every human being to access freely to information and the  networks through which this information is passed.

Article 3.- Eliminating the digital divide.

1. The information flowing through cyberspace constitutes a material and moral good that can be considered as Human Heritage, as cyberspace is, too. Access to such information and cyberspace itself, is an universal right that must be provided to all the people.

2. Digital divide, in every case, and especially when it exists between those who have more and those who have less, prevents the free and equal access to information. It is a moral imperative for all human beings and a legal imperative for states and other public bodies, both territorial and extraterritorial, to do everything is possible to reduce and eliminate the digital divide, by implementing economic resources, educational and any other type of resources, which may be necessary.

Article 4.- Accessibility of information.

The digital divide occurs not only between rich and poor people, but is also arises from any criteria which preclude the difference between those who can access to information and those who cannot, such as young and old people, men and women, or people in fullness of physical and mental conditions and people with disabilities, so that accessibility of  information is a prerequisite for the elimination of digital divide.

Article 5.- Equality of opportunities in the production and diffusion of information.
1. Everyone has the right of expression and information freedom, which cannot be fully recognized when such freedoms are restraint by the oligopoly of the media owners, whether these are public or private. There cannot be a true society of information if it is not provided that all human beings can not only express, but also have equal opportunities, to spread their ideas to all the members of the community.

2. The equality of opportunities in the production and dissemination of information must be ensured and considered of strategic importance in cyberspace. Public authorities, particularly, must be obligated to provide digital platforms, opened to public participation and dissent. The same criteria must be applied to the public ownership media.

Article 6.- Balance between copyright and free flow of the information.

1. The economic and moral rights of authors should be respected, even in cyberspace, but always balanced with the free flow of information that is characteristic of cyberspace and with the right of access to culture.

2. The right of all cybercitizens to private copying, provided it is not used collectively or to obtain profit, directly or indirectly, from it. No one is entitled to receive compensation from other individuals, due to legitimate exercise of the right to private copying, in spite of tax benefits or subsidies, if any, public authorities can allocate to authors and their organizations, from their own budgets.

Article 7.- Prohibition of monopolies and oligopolies of information.

1. Free competition will be promoted in cyberspace. Priority will be given to the elimination of those monopolies and oligopolies, public or private, which may be prejudicial for the rights of cybercitizens.

2. It is assumed that dominance positions, regardless of how they were acquired, are affecting adversely the free flow of information and contravene the law.

3. It is expressly stated the incompatibility between the production of basis software and application software. All public bodies will promote open standards and free software.

Article 8.- The right to inviolability of information.

1. Information is the lifeblood of cyberspace, so it shall always be subject to a responsible use, and it shall be respectful of others, both by those who produce it and by those who use it.

2. Law will not support the abuse of rights nor an antisocial exercise of them, and abuse of rights may be exercised either by the users of information, especially when they try to obtain an undue profit, or by copyright holders when they impede, beyond legitimate interests, the free flow of information in cyberspace.

Article 9.- Right to Habeas Data.

1. Any legitimate political order in the society of information, must ensure Habeas Data, that is to say, cybercitizens’ control on their personal data.

2. For the realization and efficiency of the right to Habeas Data two requirements are inescapable: The existence of a law that addresses this issue as a direct object, beyond the possible presence of sectorial laws, and the existence of specific supervisory bodies, provided of immediate intervention powers, that must have independence and impartiality guarantees, equivalent to those of the judiciary power.

Article 10.- Contents of Habeas Data.

1. The basic rights of the person concerned, on personal data protection, are the rights of access to the data itself, rectification, cancellation or blocking of the data, and opposition. These rights presuppose a wide right to information about their own data, right that is also recognized and protected.

2. Personal data cannot be obtained or assign to third parties without the prior, informed and true consent of the person concerned. The law may, on reasonable terms, establish those scenarios in which it would be possible to collect personal data without the consent of the concerned persons.

3. The personal data more directly related to people freedom and non-discrimination, will be considered sensitive data, whose treatment is forbidden, apart from exceptions authorized by the law upon the principle of proportionality.

Article 11.- Rights limiting the Habeas Data.

1. Habeas Data, as well as any other right, is not absolute, so it will be limited by other rights and freedoms worthies of protection, such as freedom of information, freedom of business and the common good.

2. Specially, Habeas Data will be limited under the transparency law, particularly regarding public bodies, transparency law without which there cannot be a legitimate political order. To this transparency law will be applied the two requirements of Article 9.2.

Article 12.- The right to communications privacy.

1. The free flow of information in cyberspace requires communications secrecy, a right  that could only be restricted by an order of a judge or court with guarantees of independence and impartiality, under the provisions of laws for the prevention or repression of crime, for offences that can be recognized as such in the democratic nations, and respectful of human rights.

2. Any action of a public or private person, trying to restrict severely and arbitrarily or indiscriminately, the secrecy of communications, must be classified as a criminal offense.

3. No State nor public body may establish systematic measures of espial in telecommunications networks, under any circumstances; nor arbitrarily impair the free flow of information in their territory, the territory of third countries, and less so in the meta-space, that is cyberspace. These prohibitions, as applicable to them, shall be also linked to private persons.

Article 13.- Prohibition of power monopolies on the Internet.

1. The concentration of power is always negative for Fundamental Rights. In the same way, the concentration of power in global telecommunications networks, and particularly the Internet, is completely negative, especially when there does not exist a rigorous democratic control.

2. The alleged deregulation of the Internet may in no case bring the network, or any other global networks, to be controlled by a single State to whose law and jurisdiction its main regulators submit, even if this State is a democracy, because what affects the entire world’s population cannot be subject with legitimacy, to democratic controls involving only a portion of that population.

Article 14.- Minors’ protection.

1. The protection of children less than 18 years must be ensured, especially regarding to violent and sexually explicit content, on the network. When directly or indirectly the sexual exploitation of children is promoted, this behavior must be considered as a crime against humanity, which must be subject to universal jurisdiction principles.

2. Parents must be allowed to control the content their underaged children access in the network, always in a way that respects the children’s education in democratic values ​​and personal autonomy.

3. The principles of child protection will, in no case, be an excuse to restrict freedom of information, or to impose specific values systems, to those who do not share it.

Article 15.- Human Dignity.

1. The dignity of human being, in its deepest meaning refers to the inviolability of the person, it is a meta-right present broadly within the Fundamental Rights, including some of the statements here mentioned, and so this meta-right should be protected even against the consent of the affected party.

2. There must be a prohibition cast upon any decision affecting a human being, to be taken solely by automated systems, without the intervention of other person, with power of decision for each particular case.

3. No other beyond the holder, can store and dispose of this personality footprint, which is the electronic signature of the individual. Storage partitioning is admissible, with enough security guarantees, so that no person or entity would be able to take over the electronic signature of another person.

Article 16.- Freedom of work and trade in cyberspace.

1. Every human being has the right to work freely and everyone may trade freely on the Internet, without these rights being hampered by any territorial jurisdiction.

2. The freedom of trade in cyberspace must be respectful with the rights of consumers, who have recognized the right to not be disturbed, or furtively controlled. Disturbing phone calls must be prohibited, as well as spamming, introduction of cookies or spyware, and other similar activities unless the concerned party gives his consent, in the terms of article 10.

Article 17.- Protection of cultural heritage in cyberspace.

1. The variety of ways in which information appears in cyberspace, as creative expression, ideas and knowledge encoded for data processing, that coexist and integrate without any time or space restrictions, require special attention to their permanent preservation and conservation, based on the principles of universal access and proper use, that are inherent to Digital Heritage.

2. The cultural diversity will be protected in cyberspace, in its many manifestations, including linguistic one, without it could be a pretext for any kind of particularism to prevail over the inherent universalism of human nature.

3. The protection of personal data and especially the right of cancellation must be balanced with the conservation of the information itself, as Humanity Heritage, admitting to this purpose the temporary blocking of data, with the effective security measures established by Law.

Article 18.- Citizens’ right to telematic relationship with government.

1. The right to civil participation in public affairs by electronic means must be recognized, as well as the duty of public bodies to implement digital platforms to make it effective. Cybercitizens have the right to interact electronically with all public authorities, but it only could be imposed as a duty, under Law, according to proportionality criteria.

2. Public organizations must be adapted to the cyber-society, and it must be a general criterion for its legal system interpretation. Citizens have the right to have the laws, jurisprudence and socially relevant information from public bodies to be published on the net, for free and in an accessible way.

3. No public organization may request documents to a citizen that are already held by the organization or by other coordinated public organization and shall, as a rule, collect this information directly, and without any kind of cost for the citizens.

4. The developing countries, appealing directly to this circumstance, may delay the effective recognition of the rights set forth in this Article. Developed countries should support the proper development of the information society in developing countries that respect the Human Rights.

Article 19.- Right to self-regulation within a framework of hetero-regulation.

1. Self-regulation, out of a legal democratic framework, is nothing else than a disguised way to impose the law of the strongest people. Consequently, self-regulation must be promoted within a regulatory framework that involves the least sacrifice of freedom.

2. The speed of social change inherent to cyber-society, requires to encourage self-regulation and to promote community activities in the Internet, with the recognition of custom revival in the modern sense of instantaneous custom.

3. Mediation, conciliation, arbitration and, generally, online dispute resolution systems, will be promoted, guaranteeing all citizens’ rights whatever the case. Conflict resolution public systems will be subsidiary, except in matters of strictly legal imperativeness.

Article 20.- Human Rights institutional guarantee in Cyberspace.

1. There shall be constituted an Ombudsman and a Court for the effective defense, even against state jurisdictions, of Human Rights contained in this Declaration, preferably within the UN framework and, where appropriate, the Telecivitas referred to Section 3 of this article. All affected cybercitizens who are holders of a right or legitimate interest will be entitled to attend these organs.

2. Public bodies and specially States and international organizations will promote initiatives aimed at the dissemination, effectiveness, and to enforce the legal guarantee of the cybercitizens’ Human Rights contained in this Declaration, especially through the incorporation of this Declaration to international or national Law, the adoption of a Statute for the Ombudsman and the Court latter referred to, and the effective constitution and empowerment of such bodies to protect cyberspace rights. Private persons will carry out these objectives with the means at their disposal, notably through self-regulation.

3. Human rights can only be properly and fully guaranteed within this meta-space that is cyberspace, in a democratic political framework for cyberspace, and so it is vital to progress in this new political form or Telecivitas that, in the framework of a Constitution of cyberspace, that must be endowed with enough powers and responsibilities for the management of all matters, as set forth herein, that are characteristic of cyberspace.

Article 21.- Clause of extension and progress.

1. All Fundamental Laws contained in this Declaration are characteristic of cyberspace, but their validity will extend to any activities that take place in the information society, even when they occur out of cyberspace and will have an inverse functional equivalence, i.e., from cyberspace to the material world.

2. The speed of social and technological change in the cyber-society requires that these rights must be interpreted according to such a social reality, and the principles that form them must be extended to new activities which, in the coming years, will surely be characteristic of cyber-society.

Article 22.- Closing clause in avoidance of the paradox of freedom.

1. There may not be more limitations to the rights set forth in this Declaration, than those which are directly set in the Law, provided that such measures are necessary in a democratic society and meet the criteria of proportionality of means to ends, which could be properly justified.

2. Nothing in this Declaration may be interpreted as implying any right to the States, other public bodies, groups or persons to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms, particularly to the free flow of information in cyberspace, in the terms that have been formulated in this Cyberspace Bill of Rights.

Bill of Rights, 6th October 2008.  Changes in article 1, 2012