Not all rights should be defended to the death

In an opinion poll conducted for the BBC, almost 80 per cent of those questioned thought there should be a right to internet access. In Finland the government has just declared a “legal right” to a broadband connection. The concept of internet rights is widely discussed among digital enthusiasts, who say that the internet is fast becoming a utility in the way that electricity and water are utilities: perhaps they are correct.

But it seems odd to suggest that there should be a “right” to internet access when there is no analogous “right” to electricity, water supply, gas or even a telephone line. I suppose that there are people who, forced to choose between an internet connection and indoor plumbing, would give up the shower before they would give up Facebook. But they are probably still a minority.

The concept of a “right” is captured in a striking metaphor of Ronald Dworkin’s: “rights are trumps”. The essence of a right is that it overrides consideration of pros and cons: there can be no discussion of the benefits of the exercise of the right or the costs of its provision. If I declare a right not to be tortured, or not to suffer cruel or unusual punishment, I refuse to entertain the argument that the potential victim is a nasty person with evil intentions, found in incriminating circumstances, who might yield valuable information. The right to free speech implies that people will exercise that right to say things better left unsaid. The right to a fair trial extends to people plainly guilty of horrible crimes. The purpose of enshrining fundamental principles such as free speech or fair trials as rights is to resist expediency. Like Ulysses, we tie ourselves to the mast.

That exclusion of pragmatic considerations defines the difference between rights – a fair trial – and things that are nice to have – a parking space at the shopping mall. The provision of commercial services at the expense of others should be based on a balancing of costs and benefits. That is why there is no right to electricity, but a carefully judged set of regulatory duties, sometimes called “universal service obligations”. In Britain the principal local electricity supplier must establish a connection provided you are within a certain distance of an existing supply and are willing to meet the reasonable cost. Analogous rules exist for other utilities. There is no equivalent right to receive, or obligation to provide, gas, or petrol, or a mobile phone. A general requirement of European law provides that a dominant company may not refuse to supply you without objective justification – such as that it would cost too much or that you do not pay your bills.

Perhaps the people who would declare a right to internet access only mean that it would be a good thing if internet connections were widely available. In that case we can all agree and move on. But I am not sure that is what the industry pressure groups mean, since they do not seem concerned about the cost, or have much idea of what that cost is likely to be. High-speed broadband access is a desirable facility, but if users will not pay the costs we should ponder why and review the case for subsidy in the chilly climate of other claims on public expenditure.

Confusing rights with things that are desirable is not harmless. In the past decade, we have seen the wider and wider use of the language of rights combined with a significant erosion of traditional and truly fundamental rights. The US government has engaged in torture and the British government has acquiesced in it. Free speech has been eroded by the use of libel writs to protect crooks and charlatans, by unmeritorious claims of privacy and by assertions of national security that confuse public safety with party advantage. The extravagant assertion of “human rights” by lawyers chasing briefs has created an environment in which many people treat the phrase with cynicism or even amusement. The misuse of the language of rights undermines the status of all rights. We should create rights sparingly, and defend them tenaciously.

johnkay@johnkay.com

Post and read comments at www.ft.com/kay