There has been a lot of discussion recently about whether it should be a human right to be able to access the Internet. To implement this may require new treaties.
Taking this one step further, does existing law mean it is a human right to use online communities?
Whereas Article 10 of the ECHR says ‘Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’.
Whereas Article 11 of the ECHR says ‘Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.’
If you consider the Internet as a medium that crosses frontiers, and a bulletin board as a means of people assembling peacefully, then I would regard it to be a human right to be able to express yourself freely with others in an assembled form in online communities, such as bulletin boards.
Article 11 of the convention, while not being interpreted as imposing an obligation on associations or organisations to admit everyone wishing to join, says people do have a right to apply to join them in order to further the expression of their views and practices as set out in Associated Society of Locomotive Engineers & Firemen v United Kingdom (ECHR, App no 11002/05). An organisation is an undertaking within the meaning of the EU Treaty, and the term undertaking has a broad meaning in EU Law, which can include someone who hosts a bulletin board. This means that someone should have a human right to be able to apply to join an online community, but they have no right to be a member if the administrators choose not to accept them.
Rights are never absolute. The right of one person (e.g. to form an association), may conflict with someone else’s right (e.g. not to form an association), as the ASLEF case shows. In this case it was held that the organisation’s right not to associate was greater than the individual’s right to associate. However, the recent case in the UK over the membership rules of the political party referred to in the ASLEF case should mean that in exercising their rights to refuse membership under Article 11 undertakings must only do so in line with what is acceptable in a democratic society, which includes not discriminating on grounds such as race.
So while Article 11 makes it clear that people have a right to associate with others, such as on a bulletin board, those others also have a right not to associate with them. It doesn’t stop posting on a bulletin board from being a right, just because the Admins can withdraw someones membership on grounds which are non-discriminatory.