MA Changshan*

 

Under the tremendous impetus of the information revolution, humanity is transitioning from an industrial society to a digital society, and digital human rights have become a prominent global issue. Guided by the strategies of “Rule of Law in China” and “Digital China,” China’s digital legal construction has made significant achievements with distinctive features. This implies that China will also play a more important role and have a greater impact in the field of digital human rights. Therefore, deeply understanding “Chinese modernization,” accelerating the construction of a “Chinese vision” for digital human rights, and providing a “Chinese solution” for the development of global digital human rights have become crucial and urgent tasks in the present era.

 

 

As the world’s most populous developing country, China has made significant efforts in and contributions to the field of human rights protection over the years. With the advent of the digital age, it now holds a crucial responsibility in the realm of new digital human rights protection.

 

Firstly, digital human rights are an inevitable requirement of the digital age. The ongoing information revolution has had an impact that surpasses those of the agricultural and industrial revolutions in human history, creating unprecedented virtual and real-world environments and smart living. It can be said that in the industrial revolution, everything revolved around production and labor control, while in the information society, all social activities revolve around production and information control.¹This has given rise to the digital economy, digital society, digital government, and digital ecology. These digital developments are bound to create new forms, new models, and new mechanisms such as digital identity, digital behavior, digital relationships, digital interests, and digital order, shaping humanity’s digital way of life and ushering in the era of “digital humans.” On one hand, this transformation promotes the digitization of existing powers and rights. On the other hand, it also gives rise to more digital powers and digital rights, including emerging human rights demands related to digital survival, digital equality, digital autonomy, and digital development. As of the end of 2022, China’s digital economy had reached a scale of RMB 50.2 trillion, accounting for 41.5 percent of GDP, ranking second in the world. The number of internet users reached 1.067 billion, with an internet penetration rate of 75.6 percent. Efficiencies in digital government services significantly improved, with more than one billion users on the national integrated e-government service platform, enabling the handling of high-frequency government services “all online” and “across provinces.” Digital social development has facilitated the sharing of high-quality service resources, achieving full coverage of remote medical services at the city and county levels and providing various online social services to nearly 14.1 billion people.² These empowerment and rights not only enhance existing human rights protection but also significantly drive the generation and development of digital rights. Therefore, advocating for digital rights has become an objective requirement and a natural choice.

 

Secondly, digital human rights are an important part of Chinese-style legal innovation. The Report to the 20^th National Congress of the Communist Party of China clearly puts forward the new tasks and missions of comprehensively promoting the great rejuvenation of the Chinese nation with Chinese modernization. Chinese modernization not only shares common characteristics with the modernization of other countries but also features Chinese characteristics based on its own national conditions. Therefore, Chinese-style legal paths and the protection of digital human rights will undoubtedly become a key agenda. Digital human rights will become a new hallmark of the Chinese-style rule of law. After more than forty years of reform and development, China is now at a time closest to realizing its national rejuvenation dream and has emerged as a leader in the global digital economy development, facing similar opportunities and challenges as developed countries. However, many issues do not have ready-made answers. Therefore, China can break free from the passive situation of chasing Western modernization for over a century and build an independent Chinese-style digital legal model. Digital human rights go beyond traditional human rights logic, interpret the rules of digital life, and can provide unprecedented innovation space and first-mover advantages for China’s digital rule of law, shaping the characteristics and style of the Chinese-style rule of law. Also, digital human rights are an objective reflection of the “digital survival” in the new era. Eliminating the digital divide, digital discrimination, digital monopolies, and opposing digital control and “digital hegemony” reflect the inherent requirements of all people sharing the achievements of digital development and building a community with a shared future for mankind. They embody the development goals of Chinese modernization. Digital human rights can carry the “Chinese wisdom” and “Chinese solutions” of the new era. The prominent feature of the global digital transformation is inclusiveness and diversity, and the corresponding digital human rights have novelty and exploratory characteristics. China’s innovations in legal practices such as “online government services,” Internet courts, “digital prosecution,” online mediation, grassroots “smart governance,” and more are at the forefront globally. These innovations reflect the development of human rights and legal innovation in the digital age, allowing “Chinese wisdom” and “Chinese solutions” to be integrated into the framework of digital human rights protection, making new contributions to the global human rights cause.

 

Thirdly, digital human rights are a crucial field in the construction of an independent knowledge system. Advancing Chinese modernization inevitably requires the construction of a Chinese autonomous knowledge system, theoretical system, and methodological system, as well as the proposal of original concepts, propositions, and theories with a distinctive Chinese identity. Based on the significant achievements in the digital economy, digital society, digital government, and digital ecology, Chinese scholars took the lead in introducing the concept of “digital human rights” in 2019 and conducted systematic explanations and theoretical arguments. This has laid the foundation for the assertion that digital human rights represent the “fourth generation of human rights.”³ In July 2020, “Digital Human Rights” were approved for trial publication by the China National Committee for Terminology in Science and Technology. In 2021, the project guidelines for the National Social Science Fund included the topic of “basic research on digital human rights.” These research initiatives and developments reflect the efforts of experts, scholars, and government departments to summarize the practice and formulate propositions for human rights protection in the context of “Digital China” and “Rule of Law in China.” They are grounded in the reality of China, address Chinese issues, and incorporate knowledge and theoretical innovations that draw from China’s outstanding traditional culture while adapting to the current era.

 

The fourth point emphasizes that digital human rights play a crucial role in assuming responsibility for building a global “digital civilization community.” The current global digital transformation has generated significant digital development dividends, but these dividends are not distributed equally. Some developed Western countries use their technological advantages to engage in technological bullying and “digital colonialism,” maliciously disrupting emerging industry chains, supply chains, and value chains, leading to a trend of “digital hegemony.” This presents serious challenges to digital survival rights and digital development rights. However, when it comes to “digital human rights,” these countries often apply double standards. From a global development perspective, the United Nations released the Our Common Agenda report in September 2021, proposing to reach a consensus on a “Global Digital Compact” at the global summit in September 2024. This compact should cover areas such as digital connectivity, avoiding internet fragmentation, providing people with choices on how their data is used, internet human rights, and introducing standards for accountability for discrimination and misinformation to promote reliable internet content.⁴ The Recommendations on the Ethics of Artificial Intelligence adopted by UNESCO in November 2021 emphasized the need to adopt a global approach to the development of guidelines that prioritize human dignity and the principles of human rights. This is intended to guide the responsible development of artificial intelligence technologies.⁵ At the same time, “digital human rights” have also been included in the important tasks outlined in the Roadmap for Digital Cooperation. ⁶ From this perspective, digital human rights serve as a crucial pillar in addressing the imbalance of digital development, safeguarding the development of digital existence, and building a global “digital civilization community.” As the world’s second-largest economy and the largest developing country, China has both the obligation and responsibility to curb the global “digital divide” and oppose “digital hegemony.” China should actively advocate for and even lead the advancement of digital human rights, thereby taking control of the initiative and discourse regarding digital human rights. Furthermore, China should actively participate in the United Nations’ rule-making processes related to digital human rights, fulfilling its mission in the “digital civilization community.”

 

 

Advocating and establishing digital human rights is undoubtedly a complex and comprehensive endeavor. It represents a significant theoretical innovation, practical innovation, and methodological innovation within the context of the Chinese modernization process. To accomplish this, it is essential to consider the digital age, ground the effort in Chinese practices, and address the global digital transformation. This involves the creation of a foundational roadmap for the development of digital human rights, thus offering a possible “Chinese solution” to the development of the global “digital civilization community.” This primarily manifests in three main directions.

 

Firstly, establishing the legitimacy of digital human rights. The United Nations Human Rights Council’s The Promotion, Protection, and Enjoyment of Human Rights on the Internet (published in June 2017) recognizes “human rights as the foundation of internet governance” and advocates for the equal protection of “offline human rights” and “online human rights.”⁷ However, this still does not fully break free from the traditional human rights framework. In fact, digital human rights are a nascent concept that involves the recognition, adjustment, and delineation of digital interests, both at the international and domestic levels. It requires the legitimacy and legality derived from the transformative ideas and development logic of the digital age. This can be achieved through several means. First, we can actively advance theoretical research on digital human rights to define relevant concepts and categories, and explore the fundamental principles, value principles, logical framework, and protective methods

of digital human rights. This will establish the theoretical legitimacy of digital human rights. Second, we can systematically extract innovative practices from the implementation of the “Digital China” and “Rule of Law in China” strategies. Examples include rights protection in digital government, digital justice in internet judiciary, personal information public interest litigation in digital prosecution, digital equality in digital governance, and the cultivation and enhancement of digital citizen capabilities. These practices should be continuously elevated to legal rules, ethical norms, and self-regulation within the framework of digital regulation, thus establishing the regulatory legitimacy of digital human rights. Third, we can provide an expanded interpretation of the constitution in jurisprudence, clarifying that the “state respects and protects human rights” includes not only traditional human rights but also digital human rights. This will establish the constitutional legitimacy of digital human rights.

 

Secondly, advancing the typification of digital human rights is crucial. Generally, digital human rights consist of two main components: the digitization of traditional human rights and the emergence of new digital human rights. However, only through necessary typification and specification can digital human rights be effectively implemented. This typification should align with the standards that continue to be applicable to traditional human rights while adhering to the new-era human rights logic of digital development. Based on the current development context, it is essential to primarily establish the following digital human rights: Right to Digital Existence (encompassing issues related to the digital divide and digital capabilities); Right to Digital Development (covering matters concerning digital hegemony and digital justice); Right to Digital Autonomy (involving aspects of digital dignity, digital control, and protection from digital isolation); Right to Digital Equality (addressing concerns such as algorithmic discrimination, data sharing, and data monopolies); Right to Digital Participation (encompassing issues of digital democracy and participation in digital governance); Right to Digital Oversight (involving aspects like open data and algorithm transparency). These digital human rights can further be subdivided into secondary types, forming a comprehensive typology of digital human rights.

 

Thirdly, it is essential to delineate the framework of relationships for digital human rights. Digital human rights are not isolated but constitute a part of the digital societal system. Similar to traditional human rights, they need to be situated within a specific framework of relationships to determine their scope and boundaries.

 

The first point is about digital human rights and digital sovereignty. Due to the virtual nature of the internet, the flow of data, and the ubiquity of digital space, traditional concepts of sovereignty face challenges, giving rise to a contemporary demand for digital sovereignty. Digital sovereignty, as a form of sovereignty in the context of digital governance, is essential for maintaining a nation’s digital governance order, protecting its digital economic interests, and ensuring network and data security. It exhibits distinct characteristics such as transborder invisibility, interactive flow, and autonomous value-setting. It has been evident that disregarding the digital sovereignty of other nations through practices like “extraterritorial jurisdiction” and digital surveillance (e.g., Section 702 of the U.S. Foreign Intelligence Surveillance Act) can significantly undermine digital human rights. Simultaneously, failing to prioritize digital human rights makes it challenging to shape a globally recognized concept of digital sovereignty. Therefore, digital sovereignty forms the fundamental prerequisite and practical basis for safeguarding digital human rights, while digital human rights represent the value principles and core objectives that digital sovereignty must adhere to. This necessitates global coordination and cooperation among international organizations and countries, respecting each other’s digital sovereignty and jointly defending digital human rights.

 

The second point is about digital human rights and digital civil rights. In the digital era, digital existence has become a fundamental attribute and core mechanism of human life, leading to a “large-scale human revolution” and the emergence of a distinct “digital humanity.”⁸ At this juncture, fundamental digital human rights issues emerge, as do issues related to digital citizenship within the public sphere. Digital citizens are dynamic mappings and replicas of citizens’ identities, roles, and behaviors in the digital world. They represent the digitized presentation and extended manifestation of citizens’ responsibilities, rights, and interests, operating within the “three-element architecture” of one government, one platform, and one user, characterized by platform-based digital governance relationships. In this context, digital human rights provide essential value guidance for the establishment of digital civil rights, while digital civil rights actualize and contextualize digital human rights, thereby facilitating the effective protection of digital human rights.

 

The third point is about digital human rights and public safety. The profound consequences of the information revolution include the reconstruction of social time and space, reshaping human attributes, and altering the physical nature and interactive scope of public life. Under the influence of the social operating mechanisms of data, algorithms, and platforms, the boundaries between the public and private domains have blurred, and the digital borders between nations have become increasingly challenging to delineate. Typical use cases such as cross-border e-commerce, cross-border payments, supply chain management, and service outsourcing have introduced complex cross-border data and public safety situations. This digital space’s public safety is closely related to national sovereignty and can also pose a threat to digital human rights in the physical world. For instance, the “Five Eyes Alliance,” including the United States, demands that digital companies grant them access to communication keys or establish backdoors to allow law enforcement agencies access what they deem necessary for regulating cybercrime. The United States has even granted significant powers to the National Security Agency and the Federal Bureau of Investigation, enabling them to conduct unauthorized telephone and internet surveillance on overseas non-U.S. citizens, effectively extending digital surveillance globally for large-scale data collection and theft.⁹ Therefore, it is evident that only by strengthening data public safety within a sovereign framework can digital human rights be better protected. Simultaneously, only by genuinely respecting digital human rights can an effective foundation for public safety be established. This necessitates enhancing the protective capabilities of digital sovereignty, effectively countering digital hegemony, reducing digital inequalities, and establishing a “dual-strength” digital governance system that guarantees national sovereignty and citizens’ interests.¹⁰

 

The fourth point is about digital human rights and digital governance. In today’s digital era, various digital governance approaches, such as smart governance, agile governance, node governance, and penetrative supervision, continuously emerge as representatives of the technological empowerment trend in digital societal governance. However, these technological advancements must have boundaries and value guidelines. It has become evident that algorithmic decision-making is increasingly “used to drive, guide, stimulate, control, manipulate, and constrain human behavior.”¹¹ Some technologically advanced countries are even “using mechanical devices to express themselves,”¹² leading to the alienation of digital governance. Therefore, digital governance must adhere to the principles of being “people-oriented” and “people-centered”, meaning that all technology-enabled digital governance should aim to enhance people’s digital lives, and protect digital human rights, rather than pursuing self-interest or expanding digital power. Only by doing so can a sound digital order under the rule of law be established.

 

 

The vision for digital human rights described earlier is merely a theoretical depiction. The more practical and challenging task is to explore a “Chinese solution” for the protection of digital human rights, thereby contributing to global human rights development in the digital age.

 

Firstly, there is an active need to advocate and promote digital human rights. Despite the growing significance of digital human rights, neither international organizations nor Western developed countries have clearly articulated the concept and content of “digital human rights.” In recent years, Chinese scholars and practitioners have engaged in a series of theoretical discussions and research on this topic. Moreover, they have accumulated innovative experiences in the protection of digital human rights throughout the processes of digital government, digital justice, and digital governance.

This provides China with a unique advantage to systematically propose the theme, discourse, and theory of “digital human rights.” This requires active advocacy and promotion of digital human rights on the international stage, resistance against digital hegemony, and the “double standards” concerning digital human rights. By doing so, China can establish itself as a pioneer with original and distinct “Chinese experiences” that can be shared and replicated, thus contributing “Chinese wisdom” to the development of human rights in the digital era.

 

Secondly, there is an active need to engage in the international community’s formulation of rules on digital human rights. To address human rights issues in the digital age, various countries and international organizations, such as the United Nations, the United States, and the European Union, have been formulating rules and delineating the boundaries of related rights and interests. They are striving to secure their proactive roles and discourse power in shaping international rules. In recent years, China has also promulgated innovative institutional explorations by enacting laws such as the Cybersecurity Law, the Personal Information Protection Law, and the Data Security Law. Simultaneously, China has actively participated in the formulation of international rules, including the UNESCO Recommendation on the Ethics of Artificial Intelligence. China has submitted position documents, such as the Position Paper of the People’s Republic of China on Strengthening Ethical Governance of Artificial Intelligence (AI) (released in November 2022) and the China’s Positions on Global Digital Governance (Contribution for the Global Digital Compact) (released in July 2023). These documents express a series of propositions, such as “bridging the digital divide through digital innovation and development, ensuring that the benefits of digital development reach more people globally in a fair manner; opposing the abuse of unilateral coercive measures that undermine other countries’ ability to develop their digital economy and improve people’s livelihoods, leading to sustained and systemic violations of human rights; and opposing the politicization of human rights issues, and interference in the domestic affairs of other countries and the challenge to their judicial sovereignty under the pretext of safeguarding online human rights.”¹³ Building on the “Chinese modernization” strategy and “Chinese innovation” in the realm of digital human rights, China should actively engage in international rule-making for digital human rights in a more comprehensive and in-depth manner. This involvement should aim to gain more initiative and a stronger voice while sharing China’s experiences and wisdom.

 

Furthermore, actively exploring the “Chinese model” of digital human rights protection is essential. Based on China’s innovative practices in digital human rights protection in recent years, efforts should be made to explore the mechanisms and models of “Chinese-style” digital human rights protection. This primarily encompasses the following aspects. The first is the human-centered protection philosophy that establishes the concept of “people-centered” and the principle of digital inclusiveness for “digital human rights”. The second is the systematic protection strategies that formulate national policies, legal regulations, ethical guidelines, industry standards, and international cooperation to create a comprehensive system for digital governance and rights protection framework. The third is the platform-based protection mechanisms that integrate digital human rights protection into platform operations, involving digital government, digital judiciary, and leading enterprises in a three-fold platform-based approach. The fourth is the technological protection network that leverages digital technology to empower regulatory forces, such as anti-fraud apps and transparency initiatives like “Qinglang Cyber Violence Special Governance Action” to promote cybersecurity, data security, and personal information protection. The fifth is scenario-based protection pathways that implement the digital economic, digital societal, digital governance, and digital ecological development goals outlined in the 14^th Five-Year Plan and 2035 Long-Range Objectives, embedding digital human rights protection mechanisms into various digital scenarios, and achieving tangible results in safeguarding digital human rights.

 

Finally, there is a need to actively shape a social ecosystem that respects digital human rights. With the comprehensive digitization of national and social life, the protection of digital human rights should no longer be limited to institutional declarations or isolated actions but should become an integral part of societal development within the digital ecosystem. As outlined in the UNESCO Recommendations on the Ethics of Artificial Intelligence, member states should collaborate with international organizations, educational institutions, private entities, and non-governmental organizations to provide comprehensive AI literacy education at all levels to the public of all countries. This educational effort aims to empower individuals, reduce the digital divide, and address inequalities in digital access caused by the widespread adoption of AI systems.14 In November 2021, the Central Cyberspace Affairs Commission of China issued the Action Outline for Upgrading Digital Literacy and Skills of the General Public. This document emphasizes the importance of cultivating digital citizens with digital awareness, computational thinking, lifelong learning abilities, and a sense of social responsibility. It also outlines the “Citizens’ Digital Participation Enhancement Project.”15 This requires us to strengthen digital human rights awareness and education throughout society, establish a comprehensive legal framework for the digital realm, optimize the digital judicial environment, advance research in digital human rights theory, and make efforts to enhance the digital literacy and capabilities of our citizens. These measures will provide a reliable foundation and protection for the safeguarding of digital human rights. Furthermore, we should continuously enhance international dialogue and cooperation, actively promote the development of the international digital human rights ecosystem, and make the contributions that China should rightfully offer to the global community.

 

 

2. “Digital China Development Report 2022 Released, China’s Digital Economy Maintains its Position as the World’s Second Largest”, cnr.cn, accessed July 6, 2023.

 

(Translated by LI Donglin)