Bridging the Divide: Understanding and Implementing Access to the Internet as a Human Right

Michael Karanicolas

Legal Officer, Centre for Law and Democracy, Halifax, Canada. Email: [email protected]


At his inaugural news conference as Chairman of the United States Federal Communications Commission in 2001, Michael Powell infamously responded to a journalist's question by comparing the inability of some Americans to afford Internet access with his own apparent inability to purchase a luxury car. "I think there's a Mercedes divide," was his reply to a question about the need to address the digital divide, "I would like to have one but I can't afford one."1

A decade later such flippancy towards gaps in access is no longer possible. The online world has become a central forum for shopping and commerce, for socialising and dating, for culture and entertainment, for formal and informal education, for political debate and engagement, for religious and spiritual pursuits, for medical consultation and for professional advancement in nearly every field. In short, for many people the Internet has transformed practically every aspect of day-to-day life. This transformation has seen a concomitant rise in the role of the Internet as a delivery mechanism for fundamental human rights. Although freedom of expression is the most obvious right engaged, access to the Internet has become central to the actualisation of a range of other rights, including the right to political participation,2 the right to freedom of assembly,3 the right to education,4 the right to healthcare,5 the right to take part in and maintain one's cultural activities6 and the right to work,7 among others.

This is not to say that human rights cannot exist without the Internet, but there are increasingly cases where an Internet connection can mean the difference between whether or not a person is able to exercise their fundamental rights. For a Chinese or Iranian blogger, for example, the right to freedom of expression only exists insofar as they can communicate online. Take away their Internet, and you effectively take away the right. The same might be said for a correspondence student who lives in a region that lacks accessible higher education, or a patient visiting a rural telehealth clinic. In each case, the actualisation of a broadly recognised human right is functionally dependent on access to the Internet. Furthermore, even in cases where rights can be robustly exercised offline, access to the Internet greatly enhances their substantiation. Across the democratic world, politicians are increasingly using the Internet as a primary platform for campaigning. While there are still plenty of options for offline participation in the process, as this trend continues citizens without an Internet connection will find themselves increasingly shut out of a significant part of the political discourse.

With the growing importance of the Internet as a delivery mechanism for human rights, there are increasing voices in support of the proposition that access to the Internet itself should be considered a human right. In the context of "first mile" approaches to development, understanding the Internet as a human right also supports the importance of community ownership as a means of insuring that core rights are actualised through mechanisms appropriately tailored to the unique needs of different communities. This paper discusses the case for considering the Internet as a human right and the legal implications of this understanding, and also examines some potential solutions for expanding broadband access.

INTERNATIONAL RECOGNITION OF THE RIGHT TO THE INTERNET

The right to the Internet is being increasingly recognised in global jurisprudence and legislation. In 2001 Greece amended its constitution to include Article 5A, which states that:

2. All persons have the right to participate in the Information Society. Facilitation of access to electronically transmitted information, as well as of the production, exchange and diffusion thereof, constitutes an obligation of the State… 8

In France, the Constitutional Council in 2009 struck down a controversial law that would have required ISPs to permanently block Internet access of users accused of copyright violations, in part because the freedom to access online communication services was held to be protected under the Declaration of the Rights of Man and the Citizen of 1789.9 Although the French decision does not explicitly recognise the Internet as a freestanding right in the way that the Greek Constitution does, this decision was subsequently cited by the Costa Rican Constitutional Court, in a ruling that went considerably further:

In the context of a society based on information or knowledge, this imposes upon public authorities, for the benefit of those under their administration, to promote and guarantee universal access to these new technologies.10

At the international level, the importance of the Internet was recognised as early as 1999 by the Inter-American Commission on Human Rights:

"[The Internet] is a mechanism capable of strengthening the democratic system, contributing towards the economic development of the countries of the region, and strengthening the full exercise of freedom of expression. Internet is an unprecedented technology in the history of communications that facilitates rapid transmission and access to a multiple and varied universal data network, maximizes the active participation of citizens through Internet use, contributes to the full political social, cultural and economic development of nations, thereby strengthening democratic society. In turn, the Internet has the potential to be an ally in the promotion and dissemination of human rights and democratic ideals and a very important instrument for activating human rights organizations, since its speed and amplitude allow it to send and receive information immediately, which affects the fundamental rights of individuals in different parts of the world."11

A significant step towards international recognition of the right to access the Internet came in 2011, with the adoption of the Joint Declaration on Freedom of Expression and the Internet by the special mandates for freedom of expression at the UN, OAS, OSCE and African Commission, which recognised the duty of States to promote universal access to the Internet:

Giving effect to the right to freedom of expression imposes an obligation on States to promote universal access to the Internet. Access to the Internet is also necessary to promote respect for other rights, such as the rights to education, health care and work, the right to assembly and association, and the right to free elections.12

This was followed in September 2012 by a resolution, adopted by the UN Human Rights Council, explicitly including the right to online assembly within the broader right to freedom of assembly and calling on all member States to promote and facilitate Internet access as a component of that right.13

OBLIGATIONS TO PROMOTE UNIVERSAL ACCESS

With the recognition that access to the Internet is a human right, States should consider the expansion of Internet penetration as a core obligation. Some have expressed concern that recognising the Internet as a human right, with a concomitant obligation imposed upon States to expand access, could divert resources from other pressing development goals. However, this objection can be addressed by considering the right of access as analogous to the right to education, where the positive obligations are imposed progressively, based on a State's starting point and the resources they are able to marshal.

Education is a human right, but it is broadly understood that expanding education will naturally have to compete for public resources with other interests, such as expanding health care availability, improving sanitation, etc. This is recognised within the International Covenant on Economic, Social and Cultural Rights which places a firm obligation on States to provide universal primary education, an obligation to progressively strive towards making secondary education "generally available and accessible to all" and an obligation to make higher education "equally accessible to all, on the basis of capacity".14

It is worth noting that, even without understanding the Internet as a human right, it is likely that States bear some duty to work to expand Internet access due to the medium's role as a key mechanism for expression. In addition to easily understood negative obligations that attach to freedom of expression, such as a duty to refrain from censorship, freedom of expression is broadly understood as imposing positive obligations on States:

[T]he State may be required to put in place positive measures to ensure that its own actions contribute to the free flow of information and ideas in society, what may be termed 'direct' positive measures. This might involve, for example, putting in place a system for licensing broadcasters which helps ensure diversity and limit media concentration. Perhaps the most significant example of this is the relatively recent recognition of the obligation of States to put in place a legal framework to provide for access to information held by public bodies.15

Providing for universal Internet access, in the same way that developed States provide for universal education, is by no means unrealistic. Indeed, several jurisdictions have already imposed legal requirements to ensure universal service, beginning with Estonia, which in 2000 mandated that online access must be "universally available to all subscribers regardless of their geographical location, at a uniform price."16 Similar requirements have been introduced in Finland,17 Spain18 and the Canadian province of Nova Scotia.19 These programs echo existing universal telephone access schemes that date back to the 1930's.20

Universal access initiatives are generally funded through a mixture of public and private money, and involve the setting of various benchmarks for required minimum service. In Nova Scotia, the Broadband for Rural Nova Scotia programme, a public-private partnership, guarantees any household that requests it a connection to the Internet at a download speed of at least 1.5 mbps, and at a cost that is comparable to what urban customers pay.21 Finland has a universal access programme that is also financed through a combination of private investment and public subsidies, and a benchmark minimum data transfer speed of 1 mbps which must be provided at a "reasonable price".22 In order to ensure that all residences or businesses are able to connect to the Internet should they choose to do so, Finland obliges telecoms companies to extend optical fibre networks or cable networks capable of carrying a transfer speed of at least 100 mbps to within 2 km of every home or business.23

In dealing with a large country such as Canada, the challenges in implementing an equivalent program would go far beyond those of providing universal access in a small province like Nova Scotia, or relatively small countries like Finland, Spain and Estonia. Even the transition to mobile Internet, while reducing infrastructural demands, does not fully alleviate the challenges of providing service to rural and remote communities. However, while it is reasonable to expect that physical and infrastructural challenges might delay the provision of universal Internet access to some of the most remote communities, statistics suggest that Canada's failures in this regard go beyond its size and sparseness.

THE CANADIAN EXPERIENCE

Although Canada has relatively high overall rates of connectivity, there is evidence that Canada's First Nations communities are particularly underserved. In 2007, the rate of broadband access to the Internet in urban communities and small towns in Canada was 64%, while 50% of remote communities had some sort of broadband access.24 However, the same study found that the rate of connectivity in remote First Nations Communities was only 17% and that many of these communities only had access to dial-up, rather than broadband, Internet. As a comparator, Canada's overall rate of Internet penetration, 72.2%, currently ranks 9th in the world according to an OECD study.25 However, the 17% figure among remote First Nations communities would place this segment of Canadian society 140th in the world, tied with the Solomon Islands, Cambodia, Uganda, Zambia and Myanmar.26

In part, this gap can be attributed to the broader economic problems that beset Canada's First Nations communities. Obviously households that have difficulty paying their electric bill are not going to sign up for a broadband connection. However, Statistics Canada information from 2011 shows that, while Internet use is higher among wealthier Canadians than among poorer Canadians, disparities based on income are not nearly wide enough to account for the levels seen in remote First Nations communities. Usage rates among households in the lowest income quartile are 59%, while usage in the highest quartile is 94%.27 A majority of non-users in the same survey (62%) indicated that the reason they did not use the Internet was that they had no interest, did not find it useful or did not have time. In addition, 22% of non-users cited a lack of training or an inability to use computers. Only 21% of non-users cited their lack of access to a computer or the cost of Internet service or equipment as reasons for not going online.28

In other words, although regional and economic factors have a role to play, they do not explain the full extent of the disparity. It follows that infrastructural and financial solutions, such as the Broadband for Rural Nova Scotia programme, will not by themselves be enough to solve Canada's digital divide. A demand-side approach of providing affordable access must be accompanied by a supply-side approach of spurring demand if it is to be broadly effective. At its most basic, this must include educational requirements, in order to create the technical capacity to use the Internet. However, the social and cultural factors involved in generating demand for the Internet go beyond merely teaching people how to get online.

SOCIAL CHALLENGES: CRITICAL MASS

Although the Internet has many functions, it is at its core a social tool. According to Statistics Canada, 93% of home Internet users use email, while 58% use social networking sites, 54% use the Internet to research community events and 47% use an instant messaging service.29

However, the efficacy of the Internet as a social tool depends on a user being able to integrate into an online community. When a large number of people who the user is connected to are online, connecting to the Internet becomes increasingly socially useful. On the other hand, if a user cannot find their community online, there will be little utility to the Internet as a social tool. This can be illustrated through the success and failure of social networking sites. Facebook's exponential growth is largely based on its popularity, and its placement as the world's premier social network. Users want to join Facebook because many of their friends and colleagues are on Facebook. Because Facebook's utility lies in its popularity, its massive user base provides momentum for continued growth. However, the inverse is also true, which is why Facebook's market position is so difficult to challenge. Companies attempting to launch rival social networks have had difficulty gaining traction since, even if their product is better, their small user base will mean they can offer limited social utility. There is no point signing up to Google+ if all of your friends are using Facebook.30

The Internet as a whole works in much the same way. Its usefulness as a social tool is dependent on users being able to find a community online. For example, South Korea has one of the highest rates of Internet use in the world. Because there are so many South Koreans online, Korean users generate an enormous amount of Internet content, which is written in Korean and which is relevant to South Koreans. The high South Korean web presence also creates a virtuous circle, whereby international content providers or e-commerce businesses have an incentive to branch into the South Korean market, which in turn creates a richer online experience for South Korean users, attracting more of them to the web. The more users from a community are online, the better their online experience will be.

The reverse is true if there are fewer users online, which explains why economic and infrastructural solutions can be ineffective in getting people to connect. The World Bank discovered this in the implementation of its e-Sri Lanka project. That programme allowed private individuals to apply for funding to set up Internet cafés (nenasalas) across Sri Lanka. Successful applicants received free computers and two years of free Internet, followed by two years of subsidised Internet. In return, the nenasalas would agree to provide tech-literacy training to the rural communities they served. As a supplementary measure, the government provided vouchers to the poor for subsidised Internet use. As of 2010, 600 nenasalas had been established, but despite the vouchers and the training, the level of public use of the facilities was low, and the programme has not had a noticeable impact on computer literacy rates in Sri Lanka. A World Bank report on the failures of this programme blamed the lack of interest partly on technical mistakes (for example, some of the computers provided had browsers which did not support either Tamil or Sinhalese fonts) but also on a lack of Internet content that was relevant to local villagers.31 This demonstrates how, when dealing with communities with very low Internet penetration, providing Internet access at free or heavily subsidised rates is not enough, since the lack of relatable online content can lead to difficulties in spurring broad interest. Rather, an effective solution will need to be more proactive, promoting Internet use in such a way as to build towards a critical mass of users.

SOCIAL CHALLENGES: CONTENT GENERATION

In their follow up in Sri Lanka, the World Bank recognised that relevant web content was essential to generating interest in the Internet. Locating relevant content will be easier for some underserved communities than for others. For example, one major factor is language. Communities that use a language that is widely spoken, such as English or Spanish, will have an easier time finding accessible content. This partially explains why English-speaking countries in the developing world, such as Jamaica, have relatively high rates of Internet use.32 On the other hand, it is easy to see why the e-Sri Lanka project ran into difficulties given that there are only 15.5 million Sinhalese speakers in the world, most of whom live in Sri Lanka and do not have Internet access.33 In retrospect, the lack of Sinhalese content online makes it obvious to see why giving Sinhalese speakers subsidised Internet was an ineffective strategy.

Another interesting case is India, where only 11% of people speak English, a number that roughly corresponds to the country's total number of Internet users.34 As a means of increasing interest, the Indian government is now allowing domestic domain name registration in Tamil, Hindi and Gujarati. Private sector firms have taken similar steps. In 2010, Google expanded into fourteen Indian languages, leading to a rapid growth in the blogosphere in those dialects.35

Although linguistic issues can be a factor, their importance should not be overstated. Two of the most wired nations in the world, South Korea and Estonia, speak unique languages.36 However, there is no denying that languages which are unique and concentrated among rural or poor communities, such as the indigenous South American language of Aymara, present a barrier to expanding Internet access to the regions where they are spoken, one that can best be alleviated through the creation of new content.

Related to the linguistic issue are cultural considerations, whereby communities which have been exposed to, and to a certain extent assimilated by, larger cultures will have an easier time finding relevant content. For example, users with an interest in western music will find a greater volume of content online than users interested in traditional local music. Although "Westernisation" is the most obvious process of this kind, it is not the only example. Exposure to Chinese or Arabic cultures, for instance, can similarly place people within a larger community of web users. This is not to suggest that a policy of cultural assimilation should be pursued as a means of increasing access to the Internet. On the contrary, one of the great values of the Internet is its potential to connect diasporas and to protect traditional cultures. However, it is important to be aware of, and to take into account, the specific challenges of spurring interest among smaller or unique cultures.

SUCCESS STORIES

Although it can be difficult to attract interest in the Internet from communities with low levels of connectivity, it is certainly not impossible. Nearly every community in the world built their online presence from scratch within the past few decades. The question is not whether it can be done, but how it can be accelerated.

The obvious place to start in finding the answer to this is South Korea, which has the world's highest rate of Internet penetration at 94% of households.37 This is largely the result of a period of growth between 2000 and 2002, when the number of Internet subscribers increased by 200% and the household penetration rate went from 27% to 69%. Although the rapidity of South Korea's digitisation can be attributed in part to a damaging price war among ISPs, national policies, particularly towards education, governance and commerce, paved the way. Starting in 2000, there was a drive to connect all schools to the Internet. Education services were offered online, including free tutorials for the national aptitude test and real-time online classes. South Korea also pioneered the use of e-government as early as the 1980s, pushing an increasing number of government services online in the late 1990s and early 2000s. The government reformed legislation to promote e-commerce early on, to create a positive environment for doing business online, including through strengthened security for online payment systems and for privacy. The popularity of gaming and business activities were also important drivers, and these in turn promoted the use of Internet for shopping, emailing and socialising, as well as more generally for the acquisition of information.38

In Estonia, which also enjoyed rapid success in expanding Internet penetration, the government led the way in digitisation by offering government services online. The Estonian government also created public-private partnerships as vehicles to foster a domestic information-technology industry, partly fuelled by the demand generated by the government's programme of digitisation. The Estonian case also illustrates how government leadership in terms of providing digital services can play a strong role in promoting wider access to the Internet, both by creating demand for domestic information technology services and by encouraging citizens to use the Internet as a speedier and more efficient way of interacting with the State.

CONCLUSION

Understanding the Internet as a human right, with a concomitant public responsibility to extend access, means thinking seriously about how to connect underserved communities. The South Korean and Estonian examples illustrate that governments can play a key role in helping to extend Internet penetration. In addition to supporting the construction of the necessary physical infrastructure, this should include proactive action to spur interest in getting online. Expanding web literacy and web-based education, digitising government services and promoting e-commerce are all steps that governments can embrace in order to sow the seeds of a robust online culture. Stronger measures may need to be taken in order to engage communities that are particularly underserved, such as promoting the creation of online content (possibly through arts grants) and funding the development of platforms to bridge technical gaps in accessibility due to linguistic and cultural differences or due to user disabilities.

However, it is clear that top down initiatives can only go so far, particularly where, as in Canada, cultural and social chasms separate those in government from particularly underserved communities. Considering that the ultimate goal is to generate a critical mass of users, community solutions must be at the forefront, to build engagement and interest on a local level.

There is no one-size-fits-all solution to how to connect underserved communities. Every culture and community gives rise to unique challenges, which must be addressed creatively and dynamically. However, understanding that Internet access is a right, and recognising that there is a global responsibility to address the digital divide, are the first steps to allowing the Internet to properly fulfil its moniker as the world-wide web.

ACKNOWLEDGEMENTS

Thanks to Toby Mendel, Executive Director, Centre for Law and Democracy, for support of the underlying research, and to James Green, Patrick O'Neill, Katie Sammon, Jason Smythe for additional research.

REFERENCES

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2. International Covenant on Civil and Political Rights, UN General Assembly Resolution 2200A(XXI), adopted 16 December 1966, in force 23 March 1976, Art. 25.
3. Ibid. Art. 21.
4. UN General Assembly Resolution 2200A (XXI), 16 December 1966, entered into force 3 January 1976, Art. 13.
5. Ibid. Art. 12.
6. Ibid. Art. 15.
7. Ibid. Art. 6.
8. (2008 Rev. Ed.). Available at: http://www.hellenicparliament.gr/UserFiles/f3c70a23-7696-49db-9148-f24dce6a27c8/001-156%20aggliko.pdf.
9. Cons. constitutionnel, 10 June 2009, 2009-580 DC. Available at: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/2009_580dc.pdf. The Council later approved an amended version of the law allowing for a maximum cut-off of one year, and which introduced judicial review into the process.
10. Sentencia 12790: Expediente: 09-013141-0007-CO, para. V. Unofficial translation by the author.
11. IACHR. (1999). Annual Report of the Inter-American Commission on Human Rights 1999: Report of the Office of Special Rapporteur for Freedom of Expression; Washington, D.C.: Inter-American Commission on Human Rights.
12. The United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples' Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information. (2011). Joint Declaration on Freedom of Expression and the Internet. Available at: http://www.law-democracy.org/wp-content/uploads/2010/07/11.06.Joint-Declaration.Internet.pdf. Since 1999, these mechanisms have adopted a Joint Declaration annually focusing on a different freedom of expression theme.
13. Article 19. (2012) Human Rights Council: Rights to peaceful assembly and association online recognised. London: Article 19. Available at: http://www.article19.org/resources.php/resource/3459/en/human-rights-council:-rights-to-peaceful-assembly-and-association-online-recognised.
14. UN General Assembly Resolution 2200A (XXI), 16 December 1966, entered into force 3 January 1976, Art. 13.
15. Mendel, Toby. (2011). Restricting Freedom of Expression: Standards and Principles. Halifax, Nova Scotia: Centre for Law and Democracy, Available at: http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf.
16. Tel Act, 9 Feb. 2000, s. 5.2.2. Available at: http://www.medialaw.ru/laws/russian_laws/telecom/npa/6etr/estonia.htm.
17. Communications Market Act, 363/2011, s. 60C(2). Available at: http://www.finlex.fi/en/laki/kaannokset/2003/en20030393.pdf.
18. Sustainable Economy Act of 2011, Art. 52. Available at http://www.boe.es/boe/dias/2011/03/05/pdfs/BOE-A-2011-4117.pdf [in Spanish].
19. Nova Scotia Department of Economic and Rural Development and Tourism. (2011). Broadband for Rural Nova Scotia. Halifax, Nova Scotia: Nova Scotia Department of Economic and Rural Development and Tourism. Available at: http://www.gov.ns.ca/econ/broadband.
20. See http://www.fcc.gov/encyclopedia/universal-service. Similar schemes are in force in India, Pakistan and Taiwan, among other States.
21. Motorola. (2011). The Role Model for Sustainable Rural Broadband. Available at: http://www.motorola.com/web/Business/_Documents/Case%20studies/_Static%20files/WNS_Case%20Study_Utilities_Broadband%20for%20Rural%20Nova%20Scotia%20Initiative.pdf.
22. Finland Ministry of Transport and Communications. Internet. Available at: http://www.lvm.fi/web/en/internet.
23. Ibid.
24. Canadian Council on Learning . (2010). Learning to be: Access to Broadband Internet. Ottawa: Canadian Council on Learning. Available at http://www.cli-ica.ca/en/about/about-cli/indicators/be-internet.aspx.
25. Organisation for Economic Cooperation and Development. (2012). OECD Broadband Portal. Paris: Organisation for Economic Cooperation and Development. Available at: http://www.oecd.org/internet/broadbandandtelecom/oecdbroadbandportal.htm.
26. Source: http://www.internetworldstats.com/list3.htm. This is not a perfect comparison. For one thing, all countries have a disparity between the rates of urban and rural connectivity, so it is not entirely fair to compare the rates of access in remote First Nations communities with national rates. If one were to focus on rural Uganda, the rate of connectivity would likely be lower than 17%. There is also some ambiguity as to whether these numbers are measuring the total percentage of households with access or the total percentage of users, and whether they include dial-up users as well or only those with access to broadband. However, even with these caveats, the underlying point stands. There is an enormous disparity between Canada's overall Internet penetration rate, which is among the highest in the world, and the rate within Canada's remote First Nations communities, which is far below developed world standards.
27. Statistics available at: http://www.statcan.gc.ca/daily-quotidien/111012/dq111012a-eng.htm.
28. Ibid.
29. Statistics available at: http://www.statcan.gc.ca/daily-quotidien/111012/t111012a3-eng.htm.
30. Google+, in fact, attempted to get around this difficulty by automatically signing up every gmail user to their network.
31. Ali, Amir Hatem. (2011). The Power of Social Media in Developing Nations: New Tools for Closing the Global Digital Divide and Beyond. Harvard Human Rights Journal, 24, 185-219.
32. 1.58 million users among 2.8 million people (56% of the population) according to World Bank Development Indicators. World Bank indicators place Jamaica 92nd in the world in per capita gross domestic product at purchasing power parity.
33. Lewis, M. Paul (ed.). (2009). Ethnologue: Languages of the World, Sixteenth edition. Dallas, Texas: SIL International. Available at: http://www.ethnologue.com/.
34. Vaidyanathan, Rajini. (2012). Is 2012 the year for India's internet? London: BBC News. Available at: http://www.bbc.co.uk/news/business-16354076.
35. Nolen, Stephanie. (2011). Will 'dot Bharat' help make the Internet more accessible to Indians? Toronto: The Globe and Mail. Available at: http://www.theglobeandmail.com/news/world/worldview/will-dot-bharat-help-make-the-internet-more-accessible-to-indians/article2231739/.
36. Supra note 34. Estonian has only 1 million speakers globally.
37. Ovum Consulting. (2009). Broadband Policy Development in the Republic of Korea (2009), p. 5. Available at: www.infodev.org/en/Document.934.pdf. London: Ovum Consulting.
38. Ovum Consulting, Broadband Policy Development in the Republic of Korea (2009). Available at: www.infodev.org/en/Document.934.pdf.