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Can spectrum licensing breach human rights law?

Reposted from with publisher's permission.

Some forms of wireless licensing could contravene international human rights law, according to the respected pressure group Article 19, which campaigns for freedom of expression.

The group's stance has been welcomed by those campaigning for a commons approach to spectrum management and in the long term the opinion is likely to add to the pressure for spectrum liberalisation.

Article 19's argument is based on the international human rights agreement which is enshrined in law in over 150 countries. (See below) Their view is that wireless technologies like mobile or Wi-Fi have a similar legal status to newspapers because they are also a means of sending or receiving information. Restricting freedom of expression can only be lawful if it is strictly necessary for national security or to maintain public order.

The most obvious consequence concerns those countries which require licensing for Wi-Fi. Most of these are in developing or emerging economies - Ukraine, Ghana and China are three examples. Article 19's argument suggests they are breaching international law by curbing freedom of expression in an unnecessarily restrictive manner. The risk of Wi-Fi causing interference is minimal and can easily be contained by allowing it to operate in an unlicensed band like 2.4 GHz.

The Article 19 opinion has been warmly welcomed by the Open Spectrum Foundation, which campaigns for greater access to unlicensed spectrum. Robert Horvitz, the director of the Foundation, says this opinion has the greatest significance for the developing world where allowing unlicensed use of Wi-Fi is recognised as making a major contribution to closing the digital divide.

Another spur to liberalisation

However, he believes human rights law will also have an influence on policy in developed economies, adding to the weight of argument in favour of liberalisation and reinforcing the validity of the 'spectrum commons' approach. 'The Article 19 opinion draws attention to the EU Authorisation Directive - if you don't have to licence then you shouldn't,' says Horvitz. 'For business reasons the Authorisation directive has come to the same conclusions as you would from a human rights perspective.'

Daniel Simons, Article 19's legal officer who wrote the opinion, hopes it will help shift government attitudes. He argues that when it comes to modern, low power, low interference devices, telecoms regulators need to rethink their traditional approach to licensing, which may not meet the necessity test: 'Governments should look at all new technologies and see whether licensing is necessary rather than automatically imposing it. It shouldn't be the open spectrum lobby which need to justify the opening of the airwaves, rather governments that should need to justify the imposing of restrictions.'

The application of human rights law is not the only pressure on traditional, more restrictive, licensing regimes. Antony Corel, a lawyer at Squire Sanders Dempsey, says that as new technologies like Software Defined Radio have an inbuilt capacity to avoid interference the justification for specific licences becomes weaker. The key question is how influential the human rights perspective is likely to be in influencing spectrum policy in Europe. Corel says the economic and technical viewpoints are certainly the most persuasive at the moment. 'However,' he says, 'there are lots of perspectives all pointing to the same goal - liberalisation - which can be justified on many different ways.'



International Covenant on Civil and Political Rights - section 19

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The exercise of [these rights may]... be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order or of public health or morals.

What does this mean?

Article 19 says:

  • Human Rights law certainly applies to wireless communications - the Covenant covers not just free speech but the right to seek, receive and impart information through any media. The wording is deliberately vague to include all future technologies.
  • Licensing wireless devices restricts freedom of expression but can be justified if it is necessary to maintain public order in spectrum management by preventing interference
  • Licensing is lawful only if it is absolutely necessary - licensing is only justified in the absence of other less restrictive ways of preventing interference. Furthermore the likely risk and potential consequences of any interference must outweigh the damage to freedom of expression.

Download the full Article 19 opinion.