Equality and the Digital Divide

CEDAW supplies two provisions that are directly about technology and are worth citing by number because so few candidates do. Article 11(3) requires that protective legislation relating to matters covered by the employment article be reviewed periodically in the light of scientific and technological knowledge and revised, repealed or extended as necessary. Article 14(2)(g) requires States to ensure to rural women the right to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform.

Constitution of India, articles 14 and 15, guarantee equality before the law and the equal protection of the laws, and prohibit discrimination on grounds of religion, race, caste, sex or place of birth. Article 15(3) and (4) permit special provision, which is the constitutional basis for the positive measures this chapter argues for.

What the Committee requires

General Comment 25 treats non-discrimination as running through the elements of the right rather than sitting beside them.

Under accessibility it requires that scientific progress and its applications be accessible to all without discrimination, in the three dimensions set out in [Availability, Accessibility, Acceptability and Quality]: access to applications, access to information about risks and benefits, and the open opportunity to participate. It requires States to remove discriminatory barriers, giving as its example the facilitation of access by marginalised populations to scientific education.

Under availability it requires that benefits be distributed especially to vulnerable and marginalised groups, which is a distributive instruction and not merely a prohibition on exclusion.

On women it goes further and permits temporary special measures, such as quotas for women in scientific education, to speed up substantive equality; and it states that a gender-sensitive approach is not a luxury but a crucial tool, because scientific progress and new technologies must take account of the characteristics and needs of women and girls from the first stage of research onwards.

Formal and substantive equality

This is where most of the marks are, and it is a distinction rather than a fact, so it can be learnt once and used everywhere.

Formal equality asks whether the rule treats people alike. A scheme that makes an online service available to every citizen on identical terms satisfies it completely.

Substantive equality asks whether people can actually enjoy the right on equal terms. The same scheme fails at once where a third of the population has no connection, a language barrier, no device, or no ability to read.

The instruments are drafted for substantive equality, not formal. Article 2(2) requires that the rights be exercised without discrimination, not merely that they be granted alike; the Committee's requirement to remove barriers and to distribute benefits especially to marginalised groups is a positive duty; CEDAW article 4 and the Constitution's article 15(3) and (4) authorise differential treatment for that purpose; and General Comment 25 accepts quotas in terms.

The practical consequence is that a State cannot answer a complaint about the digital divide by showing that its scheme applies to everybody. That answer establishes formal equality and is the beginning of the problem, not the end of it.

Indirect discrimination and the digital divide

The divide rarely takes the form of a rule that excludes anyone. It takes the form of a facially neutral measure with unequal effect, which is the classic shape of indirect discrimination.

Four dimensions are worth naming separately, because an answer that names only the first is thin.

1. Access. Whether a person has a connection, a device and reliable electricity. This is the dimension everyone writes about.
2. Skills. Whether a person can use them. A connection given to somebody who cannot read the interface transfers the hardware and not the benefit.
3. Quality of use. Whether what a person can do with the technology is comparable. A shared handset used for half an hour a day is not the same access as a private computer.
4. Representation in the technology itself. Whether the technology was built for them at all. A system trained on data that under-represents a population performs worse for that population, which converts the divide from a question of access into a question of design. This is the point General Comment 25 makes about gender-sensitive research from the first stage.

Worked example

A State moves applications for a food subsidy entirely online, with biometric authentication at the point of collection. The stated purposes are the elimination of fraud and administrative saving. The rule applies to every applicant identically.

Formal equality. Satisfied. There is no classification on any prohibited ground.

Substantive equality. Test the four dimensions. Access: applicants without a connection or a device must rely on an intermediary, at a cost. Skills: applicants who cannot read cannot complete the form unaided, and the intermediary is now in a position of power over them. Quality of use: an applicant with intermittent connectivity may fail at the last step and lose the entitlement. Representation: biometric authentication fails more often for manual labourers, whose fingerprints are worn, and for the elderly, and those are disproportionately the people the subsidy exists for.

Which right is engaged? Not only equality. The subsidy exists to secure an adequate standard of living, so a technological barrier to obtaining it is an interference with that right, effected through a means that bears unequally. Article 2(2) attaches the non-discrimination requirement to the exercise of the Covenant right itself.

What the State must show. That the measure pursues a legitimate aim, which it plainly does; and that the disparate effect is justified and mitigated. The mitigation is the whole of the practical answer: an offline route that is genuinely available rather than nominal, an exception procedure for authentication failure, and a rule that no entitlement is lost because a machine did not recognise a person.

The general lesson. The problem is not the technology. It is the removal of the alternative. A digital route added to a paper route enlarges access; a digital route that replaces a paper route redistributes it.

What it does NOT mean

It does not mean new technology should be withheld until everyone can have it. That would defeat the right in article 15(1)(b) rather than serve it. The duty is to extend the benefit and to attend to the distribution, which is what paragraph 6 of the 1975 Declaration says in one sentence.

It is not only about the internet. The divide in irrigation, in diagnostics, in cold chains and in laboratory access is older and in places more consequential. The digital case is the current instance of a permanent pattern.

Unequal outcome is not automatically discrimination. The framework asks whether the disadvantage is connected to a protected ground or to a group the Committee identifies as marginalised, and whether the State has taken the positive steps required of it. An answer that treats every inequality as a violation has stopped doing law.

And equality does not require identical treatment. CEDAW article 4, the Constitution's article 15(3) and (4), and the Committee's acceptance of temporary special measures all point the other way.

Quick revision

• The digital divide: the gap in access to information and communication technologies and in the education and infrastructure to use them; the leading instance of technology as a multiplier of existing inequality.
• ICESCR article 2(2): Covenant rights, including article 15(1)(b), to be exercised without discrimination on any of the listed grounds. The key provision.
• 1975 Declaration, paragraph 7: measures, including legislative measures, so that utilisation of scientific achievements promotes the fullest realisation of rights without any discrimination whatsoever on grounds of race, sex, language or religious beliefs.
• CERD article 5: equality before the law in the enjoyment of economic, social and cultural rights including public health, medical care, education and training.
• CEDAW article 11(3): protective legislation to be reviewed in the light of scientific and technological knowledge. Article 14(2)(g): rural women's access to appropriate technology.
• General Comment 25: remove discriminatory barriers; distribute benefits especially to vulnerable and marginalised groups; temporary special measures including quotas are permissible; a gender-sensitive approach from the first stage of research.
• Four dimensions: access, skills, quality of use, and representation in the technology itself.
• Formal equality asks if the rule treats alike; substantive equality asks if the right can be exercised alike. The instruments are drafted for the second.

Test yourself

1. Which single provision most directly makes unequal access to science a question of discrimination, and why? Article 2(2) of the ICESCR, which requires States Parties to guarantee that the rights in the Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. It is the most direct because the right to enjoy the benefits of scientific progress in article 15(1)(b) is itself a Covenant right, so the non-discrimination guarantee attaches to it without any further step of reasoning. Its wording also matters: it requires that the rights be exercised without discrimination, not merely conferred alike, which is the textual basis for a substantive rather than a formal reading.

2. Distinguish formal from substantive equality and say which the instruments adopt. Formal equality asks whether a rule treats people alike, and is satisfied by a measure that applies to everyone on identical terms. Substantive equality asks whether people are able in fact to enjoy the right on equal terms, and is not satisfied by identical treatment where the starting positions differ. The instruments adopt the substantive conception: article 2(2) speaks of rights being exercised without discrimination; General Comment 25 imposes positive duties to remove discriminatory barriers and to distribute benefits especially to vulnerable and marginalised groups, and accepts temporary special measures including quotas; CEDAW article 4 and articles 15(3) and 15(4) of the Constitution authorise differential treatment for that purpose.

3. Name the two CEDAW provisions that bear directly on technology and state what each requires. Article 11(3) requires that protective legislation relating to the matters covered by the employment article be reviewed periodically in the light of scientific and technological knowledge and be revised, repealed or extended as necessary. It is significant because it makes keeping the law in step with science a legal duty rather than good practice. Article 14(2)(g) requires States to ensure to rural women the right to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform, which states access to technology as a component of equality rather than as a benefit conferred.

4. A State replaces a paper application route with an online one that applies to all citizens identically. Identify the equality problem and the four dimensions along which you would test it. The problem is indirect discrimination: a facially neutral measure with unequal effect, which satisfies formal equality while redistributing practical access. The dimensions are access, whether the person has a connection, a device and reliable power; skills, whether they can use it unaided, since a person who cannot read the interface receives the hardware and not the benefit; quality of use, whether what they can do with it is comparable, a shared handset for a short period not being equivalent to private and reliable access; and representation in the technology itself, whether the system was designed and tested for them, since a system built on data under-representing a population performs worse for that population. The decisive fact is usually not the addition of the digital route but the removal of the alternative.

5. Why is it wrong to answer a digital divide complaint by saying that a new technology should not be introduced until everyone can have it? Because it treats the right as a right to equality alone, when article 15(1)(b) is a right to enjoy the benefits of scientific progress and article 15(2) imposes a duty to develop and diffuse science. Withholding a benefit from those who could have it does not confer it on those who cannot; it defeats the right for both groups while producing the appearance of equal treatment. Paragraph 6 of the 1975 Declaration states the correct obligation in a single sentence, requiring States both to extend the benefits of science and technology to all strata of the population and to protect them from harmful effects, so the duty is to extend and to attend to the distribution at the same time, not to choose between them.