On 23 September 2023, Law No. 31878 ("Law of constitutional reform that promotes the use of information and communication technologies and recognizes the right to free internet access throughout the country") was published in the official gazette El Peruano. Why is this important? Because it incorporates "internet access" as a fundamental right in the Constitution of 1993. In this alert, we will tell you more about the new law and provide our preliminary constitutional opinion.
It is no coincidence that the reform modified articles 2.4° and 14° of the Constitution. The internet is not only used for personal communication and expression, but also for education. Regarding the added Article 14-A°, its immediate antecedent is the COVID-19 pandemic, which highlighted problems and deficiencies in Peruvian society, such as the need to have access to the internet in order to guarantee the right to education, especially in areas where there is no internet or connectivity is low.
The Peruvian Constitutional Court (TC, for its acronym in Spanish) has pointed out that given the needs of a modern world, transcendent public services are required, including internet access, which is qualified as a service and is consequently considered a State and community duty. In addition, the TC adds that being under a social market economy regime, the State must act directly in the area of public services, guaranteeing continuous and quality access and provision to all, without discrimination.
Of course, this presupposes the availability of internet equipment that allow connection, and all the other necessary elements for it to work (electricity, applications, etc.).
In the following section, we will look specifically at the constitutional modifications.
Constitution of 1993
Text modified and added
Article 2.- Everyone has the right to: […]
Article 2.- Everyonehas the right to: […]
The State guarantees, through public or private investment, free internet access in all the national territory, with special emphasis on countryside areas, rural and native communities.
The simple answer is no. When the Constitution wants to indicate that something has no cost, it uses the word "gratuity" and its derivatives (see articles 2.7°, 17°, and 139.16°). In this case, the constitutional reform uses the word "free," and this could have more than one interpretation that are not mutually exclusive. In the case of public services or services of public interest, "free" means that there will be no impediments or that the State will promote their massive access, in protection of the democratic principle.
However, restrictions may exist when they are provided for by law or are necessary to protect national security, public order, public health or morals, or the rights and freedoms of others, in accordance with Article 12 of the International Covenant on Civil and Political Rights, ratified by Peru in 1978.
In specific internet and technologies language, "free" can mean that the State does not block access to the internet or censor certain pages, or that it ensures net neutrality in order to provide equal treatment to internet traffic. However, this criterion is not without exceptions, as long as it is reasonable for the preservation of the integrity and security of the network and is strictly necessary, such as for temporary management of network saturation.
As illustrated above, the term "free" can have more than one meaning; in this particular case, "free" (with little to no restriction) does not equal "for free” (at no cost).
On the other hand, to reinforce this argument, note that the new constitutional text recognizes that internet access will require public or private investment. According to Articles 58° to 60° of the Constitution, private initiative is free and the State’s enterprise activity is subsidiary to the fact that a private party wishes or is able to provide a service. There are currently private internet providers, and if it is not economically profitable for them to operate in certain areas or under certain standards, the State may provide incentives (such as tax incentives) to bring internet to all parts of the country. Only in the .absence of total private interest, the recently positivized "right of access to the internet" could justify direct State investment. However, this will be an exception, as it will first be necessary to try to exhaust all private investment options.
In summary, this reform should not lead to the notion of free access to digital media. Rather, it seeks to guarantee the availability of internet to ensure the fulfillment of an effective educational service and approach to information media.
We hope that this information will be of relevance to you and your company. If you require any further information, do not hesitate to contact us.