The Concept of Digital Human Rights and Its Reshaping of Basic Rights
ZHANG Yan* & JIANG Shuo**
Abstract: Whether a new generation of human rights emerges in the digital age has sparked widespread debate. Academic understanding of digital technology remains confined to thinking about network technology and products, often overlooking the revolutionary nature of digital media. Digital media has the sweeping potential to unify all forms of media and reshape social life, giving rise to new demands for a new generation of human rights. The concept of digital human rights can be defined as the legitimate rights of human’s infinitely extended personalities through digital media. Its core characteristic is its transcendency, where every person lives in a networked space that surpasses physical boundaries, nations, and individual personalities. Human rights are generally considered the foundation for basic constitutional rights, which, in turn, form the basis for legislative acts across various sectors. In recent years, China has enacted numerous laws in the digital domain to keep pace with the times, but due to the lack of guidance on digital human rights, these laws tend to be fragmented and disjointed. It is urgent to unify digital legislation at all levels on the basis of reshaping basic constitutional rights. Thus, it is essential to reshape the basic rights based on the concept and characteristics of digital human rights and streamline legislation at all levels under the unified guidance of basic rights. This can help establish a comprehensive digital human rights protection system that meets the demands of the modern era.
Keywords: digital human rights · infinitely extended personalities · personalities with transcendency · reshaping the basic rights
Introduction
The digital age has advanced a large number of new rights, and prompted scholars to think about the existence of “digital human rights” and whether digital human rights can become independent human rights. Some scholars have proposed that the right to personal data and information should be a legal right and a basic human right, upholding that this “digital human right” belongs to the fourth generation of human rights.1 While some argue that “digital human rights” are not a new type of human rights stemming from human rights upgrades or constituting the fourth generation of human rights and should not even qualify as a subordinate concept of human rights.2 The crux of the debate between the two perspectives is whether digital intelligence is merely a technology or a reshaping of people.
In fact, digital technology has entered the era of web 3.0; intelligent interaction and immersive virtual and real integration have become a reality, and the existence of virtual cyberspace has become a widespread consensus.3 The digital age has opened up a new form of human existence and social life. As far as personality is concerned, the first three generations of human rights were all based on physical individual personality, and the effect of the three industrial revolutions was mainly on the extension of physical personality. In the digital age, human rights respond to people moving between the physical and virtual spaces, and their personalities transcend,4 with each of them having unprecedentedly expanded personality with transcendency. Therefore, digital human rights are a new type of human rights that extend personality infinitely via digital media.
As a new type of human rights that infinitely extends one’s personality, digital human rights are the fourth generation of human rights and are paradigmatically different from the previous three generations of human rights. However, the addition of certain new rights in relevant legal provisions and the adoption of special legislation in the digital field are far from sufficient to fully protect digital human rights. The structure and connotations of the basic rights system in the current China’s Constitution need to be reshaped in the sense of the digital revolution. In other words, it is not a matter of reinterpreting a fundamental right in the Constitution, but rather of reshaping the basic rights from the structure and type, so as to establish guidance in the fundamental law. Accordingly, this paper first reviews the intergenerational changes in human rights and the concept of digital human rights, analyzes the essential attributes of digital technology and its impact on human rights, clarifies the core connotations of the concept of digital human rights, and then reinterprets the basic rights system in the Constitution, so as to provide more basic guidance for the transformation of laws in the digital age.
I. The Generational Change of Human Rights and the Origin of Digital Human Rights
Compared with natural rights, the concept and idea of human rights emerged late. It was not until the promulgation of the Universal Declaration of Human Rights in 1948 that human rights gradually evolved from a fluid concept to a relatively established concept. In 1977, Karel Vasak, the legal adviser to UNESCO and a Czech human rights scholar, put forward the concept of the third generation of human rights for the first time,5 believing that the first generation of human rights are civil and political rights, including the right to life, the right to equality, the right to property, the right to vote, the right to freedom of speech, the right to freedom of religion, etc.; the second generation of human rights are economic, social and cultural rights, including the right to employment, welfare rights, social security rights, etc.; the third generation of human rights are collective rights and solidarity rights, such as the right to self-determination of peoples, the right to the environment, the right to survival, the right to development, the rights of children, the rights of indigenous peoples, etc. Vasak went on to hold that the succession of three generations of human rights is a sequential manifestation of the ideals of “liberty, equality, and fraternity” proposed during the French Revolution. Although the generational view of human rights is not without controversy, it has become a basic form of division for human rights. However, whether digital human rights exist and whether they can be deemed the fourth generation of human rights still needs to be analyzed based on the generational classification of human rights and the concept of digital human rights.
A. Rationale for generational human rights view
The thinking of the generational division of human rights has profoundly influenced later human rights researchers, and many scholars have tried to put forward new standards. For example, some scholars in China have proposed that “digital human rights” do not have the moral basis of human rights, and that the subject of rights, the subject of obligations, and the foundational relationship between the two are the criteria for judging the generations of human rights.6 Therefore, they believe that digital human rights do not constitute a new type of human rights, let alone the fourth generation of human rights. However, this generational division is too generalized and lacks substance for delineating human rights generations. If the generational change of human rights is understood this way, there will no longer be an intergenerational innovation in the concept of human rights because the subjects of rights and obligations are none other than individuals, collectives, nations, and states, and the interaction between these subjects is none other than cooperation, competition, and confrontation. Obviously, the determination of a new generation of human rights should be based on whether the new generation of human rights can transcend or renew the human rights of the previous generation rather than simply expand and extend the scope.
In fact, the relationship between the three generations of human rights concepts is complex but not irregular. A careful study shows that there is a consistent connection in logic connotations and the development of personality. The first generation of human rights emphasized the political rights of individuals. Those rights were directly related to the personality of the individual, but the individual personality to be protected was not comprehensive enough. Therefore, the second generation of human rights included economic, social, cultural and other rights in scope, adding the part of the community attribute that is missing from the individual personality. The third generation of human rights, namely environmental rights, self-determination or development, are focused on collective rights and are directly linked to the collective public personality. Therefore, it is feasible to interpret the generational change of human rights with the continuous development of personality. Each generation of human rights features the protection of people’s individual or collective personality, and the history of generational change is the process of continuous development and enrichment of personality. The protection of personality in the third generation of human rights has attained a certain level, but it has the limitations common to the human rights of the previous two generations, that is, it has the human rights corresponding to the personality of physical individuals. If this is taken as the standard, whether digital human rights can become a new generation of human rights with the advent of the digital age depends on whether there is a fundamental development of personality in this historical stage and whether it highlights and shapes a new dimension of personality.
B. The origin of digital human rights
While promoting great changes in production and lifestyle, Internet technology has also given rise to a series of new rights and interests. It is generally believed that the development of the Internet has mainly undergone three stages. The first stage features the emergence of a large number of isolated data islands mainly for internal information exchange, with little or no communication between one another. At this stage, the Internet was as an auxiliary tool of physical space, and network information was only part of the physical space projection. In the second stage, the isolated data islands continued to expand, and became connected, breaking the isolation between platforms and the criteria for dividing the scope of cyberspace by physical space and country; the connection between people and things was established, but there were still barriers. The third stage is one of interconnection of all things, where the barriers between physical spaces and countries are constantly being broken, virtual space and physical space rapidly integrated, and man and machine widely interconnected. At this stage, the network becomes characteristic in that it transcends national borders, spaces and personality. Corresponding to the different stage of development, especially after digital platforms have become a basic lifestyle, the concept of human rights has also rid itself of the limitations of physical and temporal space, and the new rights and interests brought forth by Internet technology have gradually developed into digital human rights.7
The first stage was the era of network informatization. As a communication technology, the Internet began to enter people’s lives, and its main role was to supplement traditional means of communication. At this stage, the impact of the Internet on human life was relatively limited, and the Internet was far from prompting a radical change in the physical world. Back then, the controversy over human rights was whether network technology could constitute a human right, that is, whether the right to Internet access would constitute an independent type of human right.8 Some scholars believed that Internet access had become an important channel for people to obtain information, influencing their choices, and supporting the existence of many rights. Scholars who opposed the right to access the Internet thought that although the Internet could greatly facilitate human life, it was nothing more than a technology.
The second stage is the era of network interconnection, characterized by the digitization of the physical world. The second concept of human rights that emerged from this holds that the first three generations of human rights constitute new human rights as they extend into cyberspace. At this stage, the right to communication and some rights in the physical world, such as the right to privacy, the right to expression, and the right to personality, are the projections of the first three generations of human rights in cyberspace. Whether these rights constituted a new type of human rights became the focus of controversy.9 Those in support of the view argued that the extension of traditional human rights in the digital sphere constituted a new type of human rights. Those against the view held that these new rights and interests were only an extension of the human rights of the previous three generations in a new field and that cyber human rights were a derivative form of traditional human rights in cyberspace, and were insufficient to constitute a new type of human rights, let alone a new generation of human rights.10
The third stage is the emerging digital age of the Internet of Everything. The resulting conception of human rights holds that the digital age has advanced new types of human rights different from those of the previous three generations.11 As the digital era reshapes the world, although the first three generations of human rights stipulated a series of rights such as privacy, communication, and property rights, these rights could not effectively protect emerging digital rights and interests such as the right to be forgotten and the right to personal information. With increasing digital legislation, it is time to systematize the existing relevant legislation from the perspective of digital human rights.
It can be seen that every stage of the development of the Internet has been accompanied by adjustment and change of the human rights concept and has led to controversy in the academia about the concept of digital human rights. To sum up, whether it is the right to Internet access in the early stage, the extension and application of content advocated by the first three generations of human rights such as privacy, expression, and personality rights in cyberspace, or the independence of the virtual space to become a “metaverse”, with the emergence and extension of digital personality, the controversy can be summarized as whether there is a fourth generation of human rights that are not included in the preceding three generations of human rights.
II. The Concept of Digital Human Rights: The Right to Infinitely Extended Personalities
Whether digital human rights are a new type of human rights, or an extension of human rights in digital networks, depends to a large extent on the recognition of the nature of the Internet. In history, science and technology are known to change human life. The Internet technology has changed the form of production and life, such as traditional technology, but more importantly, has subverted the form of existence of people and things. To determine whether the concept of digital human rights holds true, we must explore the nature of the Internet in depth.
A. Controversies over the attributes of the Internet
There are mainly four views on the nature of the Internet. One is that the Internet is a technology,12 the second is that the Internet and information products constitute a category of goods,13 the third is that the Internet is a medium, and the fourth is that the Internet is a new type of space.14 These judgments about the basic nature of the Internet can be divided into two categories.15 One is the tool and product theory, and the other is the media and new space theory. The understanding of the nature of the Internet has a direct impact on the establishment of human rights in the digital age.
The first view is the concept of Internet technology and products, holding that the Internet is a technology for interpersonal communication, an upgraded information dissemination channel, and a tool to meet the communication needs of human beings. Meanwhile, the Internet and information products jointly constitute commodities, assisting human beings to grasp the laws of the physical world and improving the accuracy of their analysis of things. This view is still not free from the trap of Internet tooling. As the most common understanding of the Internet, it is also the reason for many scholars to regard big data, artificial intelligence, and even the metaverse as special forms of goods or services. It cannot be denied that in its early days the Internet was mainly used as an auxiliary tool for human communication. However, in today’s world, as the characteristics of the Internet become visible, this view is obviously biased in that it only notices the non-fundamental and marginal attributes of the Internet.
The second view is that the Internet is a digital medium and a new type of space, and is a different medium from the print medium. Unlike the digital media of the Internet, radio, television, telephone, newspapers, and books can be included in the scope of print media. However, the Internet medium digitizes information and enables the digital transformation of everything in the physical world through digital twins. According to statistics, in 2000, a quarter of the world’s information was digitized, but by 2013, the proportion reached 98%.16 The Internet expanded the freedom of human communication,17 but the role of digital media didn’t stop there. Instead, through digital twins, human elements such as body, movement, social networking, and preferences can be projected into cyberspace. The relationship between people and things was opened up by digital media, and every person and every object took on the attributes of media, leading to a wide range of interconnection between people and between people and things. With the help of Internet, it became possible to extend personality to infinite space and countless scenarios.
Furthermore, as a new form of space that is different from physical space, the cyberspace is neither an independent and self-contained space, nor a transcendent metaphysical space, but a transcendent space. The personality formed in cyberspace is a kind of personality that transcends.18 The cyberspace is generated by digital media; the physical world interacts with the virtual world, and people and machines are interconnected, in which human beings obtain digital rebirth through digital media. This way, they can live the life of the physical world, extend their spirit through digital media in cyberspace, and pursue the meaning of their lives in cyberspace.19 Besides, it is very different from physical space in that it has no boundaries and is infinitely vast in scope, making it possible for personality to extend infinitely. Explanation of the cyberspace with the mindset and rules of the physical space will in fact restrict such extension. And when the human personality extends infinitely to cyberspace, cyberspace ceases to be a space beyond law, and becomes a living space for human beings and a place for the human spirit to reside. At present, the cross-country nature of cyberspace has also been successfully applied to real-world operations. For example, the introduction of digital identity-based digital residency (e-Residency) in Estonia has attracted a large number of registrants from outside the country.20
The above two types of views reflect the attributes of the Internet, and the Internet technology concept and the Internet commodity view still had explanatory power in the early stage of the Internet. However, it should be noted that the network media has created a new type of space for human beings and enabled the human will to extend infinitely into this space. This way, the Internet has become a dwelling place for the human spirit. With the extension of human personality to cyberspace, human rights have also expanded into cyberspace, opening up the door to the emergence and expansion of digital human rights.
B. Are digital human rights only a right to access between the Internet?
Few would deny that the development of the Internet has given rise to new types of interests and rights, but there is no consensus on whether these interests and rights constitute digital human rights. There are two main arguments that question the existence of digital human rights. One holds that these new rights and interests belong to the right to access the Internet. The second argues that these new rights and interests are only the digitization of the human rights of the previous three generations.
As far as the first point of view is concerned, there are two main positions. One is that the new type of rights and interests in the cyberspace is the right to access the Internet, which does not belong to the category of human rights. A representative supporter of the position is Vint Cerf, one of the “fathers of the Internet”. He does not believe that the Internet has human rights, that human rights are an essential part of the protection of a good life, that technology is only a means used to achieve such a life, and that it is clearly wrong to focus on the means to an end rather than the end itself.21 Another position is that these new rights and interests fall under the category of human rights, but only as a right to access the Internet. It was represented by the international human rights expert Frank La Rue, who believes that the full realization of the right to information hinges on the Internet and that access to the Internet has become a human right in itself. The right to access the Internet includes “retrieval of online content” and “provision of the necessary infrastructure and information and communication technologies, such as cables, modems, computers and software.”22 It can be said that the right to access the Internet is the basis of the right to communication, expression, freedom, etc., which can be fully realized with the means provided by the Internet. Moreover, through a tool like the Internet, people can better realize other human rights. If access to the Internet cannot be guaranteed, the personality cannot be extended more widely.23 However, the right to access the Internet does not encompass digital human rights. It only encompasses one of the aspects. Accessing the Internet is only the beginning and doesn’t touch on the disruptive changes brought about by the projection of the human spirit and its infinite extension in cyberspace.
The second view is that digital human rights are in fact the digitized human rights. The basic idea of the digitized human rights is that the rights enjoyed offline should also be protected online, since they are an extension of the first three generations of human rights in cyberspace. Accordingly, they do not constitute a new type of human rights, and the boundary between cyberspace and physical space is clear.24 Digitization has shifted human communication and expression of opinions from print media to the Internet. However, it is still a projection of a physical personality in the virtual space. The role of the Internet here consists only in facilitating the digital transformation of human rights, which has no trans-epochal significance, but only constitutes the wider application of human rights of the first three generations with new technological means.
In fact, both of these views belong to the early stage of the development of the Internet, and they are far from seeing the revolutionary characteristics of the Internet itself. What distinguishes the digital age from any other era is that everything is a medium, and people are the carriers of information, and even the media itself. However, once people are regarded as media, they may also be reduced to information providers or even information itself, absorbing information while being fed by carefully woven information, using their own bodies, lives or actions as raw materials to produce data products required for platforms and even digital hegemony. The ongoing situation of food delivery riders trapped in the cage of algorithms, the algorithmic push and leakage of personal information in shopping are all challenges encountered in the digital age. We cannot effectively respond to them relying on the traditional concept of human rights, and the legal system based on the human rights of the first three generations cannot address the problems of the digital age. When we reflect on the basic consensus that people are not tools but goals, how should we position the personality appearing in the form of a medium, like everything else in the digital age? That is a proposition that has never been encountered in the traditional concept of human rights and is the key to interpreting the concept of digital human rights.
C. Digital human rights as a new generation of human rights
Throughout history, the development of human rights has always been influenced by two currents of thought. On the one hand, people want to incorporate many rights into the human rights system for fuller protection of their life. On the other hand, they fear that the proliferation will lead to the devaluation of human rights, so they strive to prevent the expansion of human rights. Since the 1980s, there have been sporadic discussions about the human rights of the fourth generation. However, there has been no broad consensus on what constitutes the fourth generation of human rights, whether it is genetics, women, indigenous rights or technological change. Some scholars in China have also put forward the idea of the fourth generation of human rights.25 Although those views are confined to the times and are limited to the scope of human rights in physical space, they are worthy of recognition for holding that human rights are constantly evolving.
For a long time, there has been a lack of support in the academic community for digital human rights to constitute an independent generation of human rights, though for different reasons. For example, Chinese scholars believe that digital human rights “take the production and life relations of dual space as the social foundation, the digital information orientation and related rights and interests of the people as the form of expression, and the well-rounded development of the people in a smart society as the core demand, break through the limitations of physical space, time and biological attributes of the first three generations of human rights, and realize the transformation and upgrading of freedom and equality rights, economic, social and cultural rights, and survival and development rights.”26 So they qualify as an independent generation. The U.S. scholar Professor Mathias Risse argued that the first generation of human rights focus on the protection of personality, the second generation on relative status, the third generation cherishes various collective rights, and the fourth generation focuses on the relationship between human beings and entities with similar or greater intelligence, and are epistemological rights.27 However, neither the fourth-generation concept of human rights proposed by Chinese scholars nor the epistemological rights proposed by Prof. Risse directly respond to the core demands of human rights in the digital age. They cannot explain why issues such as the digital divide, information cocoons, algorithmic black holes, online violence, and online rumors have become the core concerns of the digital age and, therefore, cannot explain why digital human rights can constitute an independent generation of human rights.
In Marshall Mcluhan’s view, the medium is essentially an extension of the human being and the reinforcement and amplification of the human organs and senses.28 With the help of digital media, the human will be able to shuttle between the physical space and the virtual space, and personality will be able to extend infinitely in the virtual space. So there are two kinds of personality, namely physical space personality and transcendent digital personality.29 Transcendence means the connection and interaction between things and across their boundaries.30 Thanks to the transcendent digital personality, human rights have undergone a revolutionary change, and digital human rights have become a new paradigm for human rights development. This change is manifested first and foremost in the transformation of traditional human rights; specifically, some rights that exist only in physical space are not affected, while others become unimportant in the digital age and are gradually excluded from the category of human rights. Besides, the digital transformation of traditional human rights will lead to a new understanding of the traditional human rights concept. For example, the right to communication and the right to privacy, which are faced with great challenges in the digital age. The scenarios for their occurrence, and the methods, scope, and intensity of their protection will change greatly and human rights in cyberspace can still be regarded as derivatives of human rights in physical space. Last, with the mediatization and digitization of human beings, people will live in a new environment jointly created by the physical world and the metaverse. Accordingly, human rights will be completely reshaped, making it impossible to protect human rights with the expansive interpretation of traditional human rights because the field that triggers the human rights crises is mainly in cyberspace, and what is to be protected is the rights and interests generated in cyberspace. The means, methods and intensity of protection have to be realized with Internet media. Eventually, a revolutionary change will happen to human rights.
This revolutionary nature does not lie in the denial of physical personality, or in the existence of media, but in the fact that digital media are more pervasive, extensive, and far-reaching than any previous media. More precisely, digital media unify all media, including newspapers, journals, communications, radio, television, and the Internet.31 With digital media, the transcending digital personality of each person has reached an unprecedented level. It should be said that the first three generations of human rights already included transcending-personal human rights based on general media, such as the rights to press, radio, television, communication, etc. However, digital media not only upgrade and unify various media, but also mediate and incorporate people into the virtual space (metaverse) they construct. Therefore, in terms of a formula, digital human rights (including digital personalities) can be expressed as “1 + N”, where “1” refers to the physical space personality of traditional human rights protection, “+” means to cross through media, for example, the right to access the Internet, and “N” refers to multiple digital personalities in different digital spaces. Digital media enable everyone to extend from “1” to “1 + N”, in other words, they make it possible for each person to infinitely extend and derive their legitimate rights and interests for their multiple digital personalities. With the help of digital media, human beings have opened up new forms of life across personalities, countries, and physical and virtual spaces. This means that digital media are not just a technology or tool, but life itself. Hence, digital human rights are an inevitable requirement of digital life, and belongs to a new type, precisely, the fourth-generation human rights.
III. Characteristics of Digital Human Rights and the Need for Their Institutionalization
In modern times, human rights have been constantly justified as a political concept. For most countries, they are considered the basis of a positive legal system. As the fourth generation of human rights, digital human rights have characteristics differing them from the previous three generations of human rights. Those features determine that different types of rights and interests are granted by positive law to protect digital human rights. On the other hand, digital human rights still belong to the category of human rights, so they are similar to the previous three generations of human rights in terms of the necessity for institutionalization, though with their own uniqueness.
A. Characteristics of digital human rights
As mentioned above, there are mainly two different perceptions of digital human rights. The first is to treat the digitally transformed human rights of the previous three generations as the fourth generation of human rights. “Human rights in the digital age” is not the same as “digital human rights.” Since the revolutionary changes of digital media compared to traditional media are not seen, the goal and focus are still on the protection of human beings in the physical space. The second is the belief that fourth-generation human rights only occur in cyberspace - this is still in fact a continuation of physical space thinking. Digital human rights do not deny the physical personality of the individuals, but point to the transcendent digital personality. The term means that each person’s personality transcends the physical space and the virtual space and becomes a cross-space, cross-country, and cross-regional existence. Therefore, compared with the previous three generations of human rights, the special feature of digital human rights consists in the transcendent extension of personality caused by digital media. It is this feature that makes digital human rights an independent type of human rights. In short, transcendence constitutes the basic feature of digital human rights.
Transcendence is also a unique feature of digital human rights. It is embodied in “one subject with multi-dimensionality” (i.e., “1 + N”). “One subject” refers to the fact that the subject of human rights is human beings, and all human rights concepts are based on the protection of important values cherished by human beings. In the traditional human rights view, the one subject corresponds to the individual personality of each person; in the current era of weak digital intelligence, it refers to the personality that transcends each person.32 “Multiple dimensionality” is manifested in the fact that each person’s personality spans multiple dimensions with the help of digital media. First, in the spatial dimension, digital human rights exist in and between physical space and virtual space (metaverse), and are a kind of human rights that exist across spaces. It is generally believed that cyberspace is composed of three overlapping layers: the lowest layer is the physical layer consisting of network infrastructure; the middle is the logic layer, that is, the code and algorithm layer; and the top is either the content layer or the virtual layer.33 Correspondingly, digital human rights run through all links from access to the network, existence on the network, and then disconnection from the network. All three layers are covered by digital human rights protection. Second, in the political dimension, human rights themselves are above the state, and digital human rights are a kind of trans-national and cross-regional rights that appear in the era of sovereign states. Third, in the dimension of personality, the public nature of human rights does not simply mean that human rights include democratic procedures. Instead, as rights they are not expressed by monologic individual personalities, but across individual personalities. In the context of the digital media revolution, this kind of cross-individual personality has achieved unprecedented development, making it possible for everyone to communicate with people from all over the world through digital media. In this scenario, the geographical boundaries of countries and regions are no longer an obstacle, and the online platforms have greatly contributed to the realization of cross-individual personality, and has thus become a new social force to reshape the form of states.
As a type of human rights, digital human rights have the features of general human rights; for example, they are ideal, universal, prioritized, etc. In fact, they have greater advantages in these characteristics. The ideality of digital human rights is reflected in their infinite potential for the development of personality; the infinite potential forestalls the full realization of the infinite extension of personality, and entails that it can only be optimized. The universality of digital human rights lies in the fact that all the people are entitled to enjoy them. For general human rights, their subject is universal, but the universality of digital human rights is even broader. For many subjects with certain flaws, universality is an ideal.Compared with traditional human rights, digital human rights have reached a new level of universality, making it possible for more people, including people with disabilities, to achieve personality extension through digital media. Priority lies in the precedence of personality over the domestic positive law of any country through the infinite extension of digital media. Obviously, such priority has only ideal moral effect and is, in practice, subject to both international and domestic orders and institutions.
Besides, digital human rights are highly abstract. This high degree of abstraction is reflected in all elements of their structure, including subjects, obligors, and limitations. The abstract nature of their subject lies in the fact that only cross-individual personalities in the abstract sense can be justified, and once they are substantiated or individualized, digital human rights will have inherent contradictions. For example, individual personalities will inevitably face the dilemma of choosing between physical and virtual personalities, and the contradiction between the identity of the nation-state and the anarchic identity of the virtual space. As far as the obligors of digital human rights are concerned, there is no concrete answer through human rights themselves: they can be countries and their citizens, foreign countries, or transnational cyber giants. In terms of the limitations, it is impossible to give a concrete answer with digital human rights entitled to the people, since the restrictions may come from other people, companies, countries, other countries and international organizations. More explicitly, digital human rights themselves contain two rights that may conflict with each other, for example, the right to freedom of communication and the right to privacy, the right to be forgotten and the right to know, the right to operate a business and the right to transparency in algorithms, and so on. This means that different people may claim protection of conflicting rights and interests in the name of digital human rights, often across countries, regions and spaces. Therefore, the high abstraction of digital human rights is also an openness that crosses countries, regions, and spaces and that is oriented toward future development.
B. The necessity for institutionalizing digital human rights
The currently ongoing digital technology revolution is happening with sovereign states as the basic unit. The legislation related to the digital revolution that has swept the world still starts with domestic legislation. In specific legal practice, due to the failure of legislation to fully grasp the concept and characteristics of digital human rights and the lack of clear and specific behavioral norms and guidance for new phenomena and business forms, there are many contradictions and conflicts between different entities in protecting their respective digital human rights. To protect the right to infinitely extended personalities of different social entities, it is necessary for legislation to play its role in dispute resolution. Therefore, in recent years, laws and regulations have been formulated for almost all new forms of business in China. For example, after the emergence of online car-hailing, the Ministry of Transport and other ministries and commissions jointly issued the Interim Measures for the Management of Online Taxi Reservation Services; after the emergence of online streaming, the Ministry of Public Security and other ministries and commissions jointly issued the Management Measures for Online Streaming and Marketing (Trial Implementation). Besides, special general laws have been enacted, for example, the Cybersecurity Law, Data Security Law, Personal Information Protection Law, etc. However, the legislation is generally fragmented and based on social needs. Although the laws can meet temporary needs, there is an urgent need for them to be improved in terms of stability, structural layout and systematization.34
Meanwhile, there is a contradiction between legal gaps and legislative redundancy in legislation in the digital age. In the face of emerging trends, it is difficult for legislation to fill all legal loopholes in a timely manner, and it is necessary to strengthen legislation and supplement loopholes promptly. Due to the legislative gap in the basic rights of the China’s Constitution, it is difficult for the subordinate laws to find a basis in principle, and the laws of various departments have built and improved the system according to the legal interests to be protected, which has affected the integrity of legislation and made it difficult to protect the legal interests in the digital age.
However, without touching the basic principles of China’s Constitution, it is difficult to cope with the rapid development of the Internet era by adding legal provisions, and the result is that the law is frequently revised. Due to various limitations, the revised law quickly lagged behind and needed to be amended again at short notice. Although frequent amendments to the law can resolve the temporary problem of “lawlessness”, it also hurts the seriousness of the rule of law. Therefore, it is necessary to guide legislation at all levels from the level of fundamental constitutional rights. However, the basic rights of current Constitution are the products of the era of the second industrial revolution, and the existing basic rights and their interpretations cannot competently guide and constrain the systematization, integrity, and certainty of the legislation on digital-related legal interests, so it is necessary to further reinterpret the basic rights of Constitution from the perspective of digital human rights.
C. From digital human rights to constitutional basic rights
The relationship between digital human rights and constitutional basic rights is twofold. The national positive legal system needs to be guided by basic rights at the constitutional level to effectively protect digital-related rights and interests. Meanwhile, digital human rights also need to be transformed into legal rights and interests implemented and protected by national coercive power, so as to be realized. Accordingly, the relationship between digital human rights and basic rights can be described as digital human rights constituting the source of the objectives and content of constitutional basic rights and constitutional basic rights, implying a desire to maximize the optimal realization of digital human rights.35 Digital human rights are the foundation of the basic rights of the constitution, and only when they are incorporated into the constitution can they be systematically and effectively protected. Therefore, the transition from digital human rights to basic rights in the constitution is one from ideal to a legal necessity. To complete this transformation, they should undergo four narrowing processes.36
First, digital human rights have been narrowed from a universal moral right to domestic rights of countries. Nation-states furnish the foundation for their realization. The existing international order is not in the form of a single domestic order and the international order, as Kelsen said, but a dual structure of the domestic order and the international order,37 under which the nation-states strongly support the implementation of digital human rights within national borders. If we only talk about the protection of human rights in the sense of international law, the realization of digital human rights is in fact only a moral issue. However, the transcendent nature of digital media makes the national legal protection and the transnational nature of digital human rights an issue highlighted in legislation.
Second, digital human rights have been narrowed from rights with universal moral effect to institutionalized rights within the legal order. In order to implement digital human rights, the national legal order must be a coercive and authoritative order. Specifically, before digital human rights, a country already has a legal order, and the first three generations of human rights have also been stipulated in the basic rights of the constitution, furnishing the premise of the order for the construction of digital human rights. This means that while maintaining the stability of the constitutional order, we should incorporate the content of digital human rights into the basic rights of the constitution. The inclusion of digital human rights into basic rights requires not only respecting the order system that established and maintained the basic rights of the constitution, but also institutionalizing digital human rights by reinterpreting basic rights.
Third, digital human rights have been transformed from abstract rights to rights with scientific knowledge. When talking about the realization of digital human rights, we will inevitably involve the question of how individuals and communities should act to comply with the behavioral norms that are contained and required by digital human rights. This issue concerns the third narrowing of digital human rights, that is, rational and scientific cognition. Digital human rights are ideal and abstract, while the digital society is rich, diverse and ever-changing. As a result, the realization and application of digital human rights will inevitably lead to the problems of cognition, interpretation and trade-off based on digital science. Therefore, the legal protection of digital human rights in practice is inevitably an interdisciplinary cognitive process involving digital technology professionals and legal professionals.
Fourth, the digital technology life that emerged from the world should be narrowed down to empirical rights with specific cultural values, that is, the customization of digital human rights. Culture here does not refer to all spiritual products in a broad sense, but is used in the narrow sense that highlights the quality of legal norms.38 As Jean-Jacques Rousseau put it: “In order to discover the best social rules adapted to all peoples, it is necessary to have a supreme intelligence capable of discerning all human feelings, and not dominated by any emotion.”39 The transformation of digital technology into the way of life of various nation-states is inevitably a process of local customization, and the legal protection of digital human rights in various countries also has specific cultural and customary features. If digital technology is just a medium, then the physical cultural forms will also enter the virtual digital world and become the life form of the virtual space.
The above four steps point out the path for the state to respect and protect digital human rights, realize the transition of digital human rights to constitutional basic rights, while furnishing a basis for integrating the value of digital human rights into constitutional basic rights and reconstructing constitutional basic rights. So far, the basic institutionalization path for digital human rights has been clarified, and we can go deep into the specific institutional system of China to further discuss the structure of basic constitutional rights and the institutional system for protecting digital information rights and interests.
IV. The Reshaping of Constitutional Basic Rights Led by Digital Human Rights
The emergence of digital human rights as the fourth generation of human rights means that legislation must be optimized to realize digital human rights within the scope of facts and legal possibilities, that is, to transform them into legal principles and norms.40 It also means that digital human rights do not correspond to a certain constitutional basic right. Instead, we should integrate the concept and value of digital human rights into the existing human rights protection system, entailing changes to the structure and connotation of basic rights as a whole.41 As mentioned above, China’s 1982 Constitution was promulgated between the second and third industrial revolutions, and it is difficult for the existing basic rights to respond to the demands of human rights protection in the digital age. However, traditional sectoral laws and contingency legislation in the digital field urgently need constitutional guidance. So it is necessary to reshape the structure and connotation of basic constitutional rights based on digital human rights.
It’s not hard to imagine that the digital age could not have been foreseen when the 1982 Constitution was drafted. So its provisions on basic rights such as human dignity, workers’ rights, and freedom of communication, and the 2004 Constitutional Amendment, which included “the state respects and protects human rights”, all belong to the first three generations of human rights. At present, the rule of law transformation in the digital era has an important task, that is, to reshape the structure and connotation of the basic rights of the Constitution from the perspective of digital human rights, so as to adapt the Constitution to the fundamental protection of human rights in the digital age, and give full play to its systematic and guiding role in sectoral legislation during the period.
First, Article 33 (3) of China’s Constitution stipulates that “the State respects and protects human rights.” As an important constitutional principle, this provision furnishes a general basis for the interpretation of the basic rights clause.42 This human rights provision can be seen as the general provision that accommodates unenumerated rights. It serves to provide a constitutional basis for the protection of unenumerated basic rights and for the reinterpretation of existing basic rights. In the digital age, the human rights respected and guaranteed by the state can be deemed to include “digital human rights” — the fourth generation of human rights through objective interpretation. In other words, the human rights protected by the Constitution have always included the right to infinitely extended personalities. With the advent of the digital media revolution, digital human rights have become an independent new type of human rights and a basic right protected by the Constitution.
Second, Article 38 of China’s Constitution stipulates that “the personal dignity of citizens of the People’s Republic of China shall not be violated.” It is generally believed in academia that the protection of digital rights such as personal information is intended to protect the “digital personality” of individuals. However, there is still a lack of accurate interpretation of what a digital personality is. As mentioned earlier, digital personality does not express an individual personality, but a personality that transcends. It is precisely thanks to the revolutionary digital media that the personality has realized the transcendent extension from the physical space to the cyberspace, which is infinitely vast, and which makes possible the infinite extension of personality. With such understanding of the transcendent characteristics of digital personality, when we return to the protection of personal information rights and interests, we can see that the focus of legislation to protect personal information is not to treat personal information as an object, so as to form civil rights such as possession, use, and income in the traditional civil law sense, but to remove the hindrance caused by the improper collection and use of personal information to the extension of the personality of the personal information owner, as well as unnecessary interference in the extension of personality.
Third, Article 13 of China’s Constitution stipulates that “the lawful private property of citizens shall not be infringed upon.” In general, property includes both tangible and intangible property, such as intellectual property. Property in the digital age should be expanded to the virtual. Some scholars have described it as virtual property and defined it as “having property value and existing in cyberspace in the form of electromagnetic data.”43 One of the problems with this definition is that it sees the existence of virtual property, but ignores the trans-spatial nature of virtual property, which is underpinned by digital media. In many cases, such issues as whether the physical form of virtual property is part of the virtual property, or whether the physical form of property rights includes its digital form of property rights need to be clarified at the level of basic rights. In fact, the era and thinking of a single physical space in the past have come to an end, and shuttling between and crossing physical space and virtual space have become the basic form of human life. Therefore, the two opposing concepts of physical property and virtual property seem to be clear on the surface, but in fact do not conform to the “transcendent” existence of real things in practice. Compared with the property rights of the traditional physical world, the concept of “digital property” is more appropriate for property in the cyberspace. It is more accurate in that it does not deny the physical form of property, but highlights the simultaneous existence of property in both physical and virtual forms, which are not isolated or opposed to one another. Generally speaking, property in the physical world is divided into movable property, immovable property and intellectual property, and their value lies in ensuring human stability — “only those with property can settle down” and in promoting the extension of personality in physical space. Digital property enables personality to transcend physical space and virtual space, and extend infinitely into the virtual space, where it can also inhabit a certain place. For example, electromagnetic data is the usual form of existence of digital property, but it is not the core element for judging digital property — the core of digital property lies in the protection of the transcendence and stability of personality extension. The view taking property as data information and digital products fails to grasp the core of digital property.44 Therefore, the constitutional provisions on property rights should be interpreted by expansion to meet the needs of the digital age.
Fourth, Article 40 of China’s Constitution stipulates that “the freedom and confidentiality of correspondence of citizens of the People’s Republic of China shall be protected by law.” Seen from the purpose of the legal protection, protection for the right of communication involves not only the means of communication such as telephone, fax, telegram, letter and so on in physical space, as well as the freedom and confidentiality of communication realized through the means of communication, but also more importantly, the right to extend personality. Traditional media such as fax, telegram, and letter are known to bring limited extension to human beings, while the emergence of network media has made possible infinitely extended personalities. Therefore, the right of communication in the digital age has thus ushered in its own era. When it is understood in a broader sense as the right of communication media, we can see that a series of rights such as the right to speech, press, radio and television, etc., are all its subordinate rights. New and important in the era of the second industrial revolution, they have become everyday and ordinary in the digital age, and can be uniformly placed under the right of media communication for protection. It is believed that with the deepening of the digital technology revolution, the digital media will unify various media. Then there would be no need for separate media-related rights.
Fifth, Article 42 of China’s Constitution stipulates that “citizens of the People’s Republic of China have the right and duty to work.” Online platforms are reshaping the mode of production of human beings, and various economic forms including gig economy and platform economy have emerged. Data has become a new factor of production; algorithms have shifted from the management of things to the regulation of people, and the images of “labor” and “laborers” have become blurred. The right to infinitely extended personalities protected by digital human rights means that workers can use digital as a medium for a series of labors such as production, processing, and sales; however, neither the process of labor nor the acquisition of labor output can disparage or sacrifice the personality of workers. A particularly important reason is that with the empowerment of digital media, capital has made exponential progress in terms of magnitude order and operational efficiency, and the old thinking and calculation standards cannot adapt to the protection of labor rights and interests in the digital age. The algorithms, the rate of return on capital, and the remuneration standards of workers are all faced with the challenge of digital capitalism. Therefore, in order to fully protect the rights and interests of workers, we must redefine the boundary between capitalism and socialism in the digital age, and regulate the disorderly expansion of capital under digital empowerment. To define the boundaries of labor rights, we shall protect labor and employment rights, and delineate the boundaries between machines and people, while restricting the boundaries of capital profits, and reasonably determining the working hours and income of laborers.
It should be noted that the emergence of digital human rights has brought revolutionary changes to basic rights, and the depth and breadth of the impact of those changes are still expanding, and will inevitably involve more legal relationships. The above content can serve as an outline for the integration of digital human rights into the basic rights of the constitution, since the dimension of digital human rights has been added to the basic rights architecture. In the face of the ceaseless emergence of new business forms, new scenarios and new forms of life in the future, more connotations of digital human rights will be incorporated into basic rights. In short, transition from digital human rights to basic rights requires a new interpretation of the basic rights clauses in China’s Constitution in line with the concept of digital human rights, and consequently guidance on the transformation of China’s laws. Only in this way, can the concept of digital human rights be truly integrated into special laws in the digital field, traditional legal sectors, and human rights conventions, and can we then build a system for digital human rights protection in China.
V. Conclusion
Digital human rights are the source of justification for the people to extend their personality infinitely through digital media, and constitute a new type fourth-generation human rights. Compared with the previous three generations of human rights, they have distinct characteristics of personality that transcends, that is, personality between physical personality and digital personality. Therefore, what digital human rights protect is the right and boundaries of personality to extend infinitely through digital media. In recent years, China has been enhancing digital legislation, enacting Cybersecurity Law, Data Security Law, Personal Information Protection Law and other laws. Meanwhile, government departments at all levels have formulated administrative regulations and rules, and traditional legal departments have also achieved digital transformation by adding Internet provisions. However, due to the lack of fundamental guidance, these digital transformations are still contingent and fragmented. The types and contents of the basic rights stipulated in China’s Constitution are generally based on the second industrial revolution, so digital human rights will reshape most of the basic rights in terms of structure and connotation, including the reshaping of Articles 13, 33, 38, and 40 of the Constitution, to promote the construction of an institutional system for digital human rights protection in China.
(Translated by QIAN Chuijun)
* ZHANG Yan ( 张龑 ), Professor at the Law School, Renmin University of China.
** JIANG Shuo ( 江烁 ), Doctoral candidate at the Law School, Renmin University of China. This article is the phased result of “Feasibility Demonstration of Basic Legislation on Artificial Intelligence” (Project No. 2022K20263), a project of the Bureau of Law-based Cyberspace Governance at the Cyberspace Administration of China.
1. Some scholars believe that digital human rights are an emerging human right, and lead a new generation of human rights. See Zhang Wenxian, “Human Rights Jurisprudence in the New Era,” Human Rights 3 (2019): 22. Some believe that the autonomy of data information, the right to know about data information, the right to express data information, the right to fair use of data information, the right to privacy of data information, and the right to property rights of data information belong to the fourth generation of human rights. See Ma Changshan, “‘The Fourth Generation of Human Rights’ under the Background of Smart Society and Its Protection,” China Legal Science 5 (2019): 5-24.
2. Liu Zhiqiang, “‘Digital Human Rights’ Does Not Constitute the Fourth Generation of Human Rights,” Chinese Journal of Law 1 (2021): 20-34. There is also a view that digital human rights are values for evaluating or guiding the use of digital technologies rather than a new category on a par with existing human rights and that digital human rights, therefore, should not be deemed to constitute the fourth generation of human rights. See Gao Yifei, “Why Human Rights is Important in the Digital Age: A Research on Digital Human Rights as a Value System,” Modern Law Science 3 (2022): 150.
3. Zhang Xinbao and Xu Ke, “The Governance Model of Cyberspace Sovereignty and Its Institutional Construction,” Social Sciences in China 8 (2016): 139-158; Zhang Wenxian, “Constructing the Legal Order of an Intelligent Society,” Oriental Law 9 (2020): 4-19; Cheng Jinhua, “Legal Principles of Metaverse Governance,” Oriental Law 2 (2022): 20-30.
4. Regarding the trans-spatiality, trans-national and trans-personality of cyberspace, see Zhang Yan, “The Dual Foundation of Cybersecurity Legislation,” Social Sciences in China 10 (2021): 85-86.
5. Karel Vasak, Human Rights: A 30-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights, UNESCO Courier, November 1977 . 6. Liu Zhiqiang, “‘Digital Human Rights’ Does Not Constitute the Fourth Generation of Human Rights,” Chinese Journal of Law 1 (2021): 23.
7. It is generally believed that there are three stages of Internet development, namely Web 1.0, Web 2.0, and Web 3.0, but there are multiple interpretations of these three stages. A typical view is that Web 1.0 is to access and obtain information in cyberspace, Web 2.0 features the connection between people, and Web 3.0 is the network of knowledge. Nath, Keshab/Dhar, Sourish/Basishtha, Subhash, Web 1.0 to Web 3.0-Evolution of the Web and its Various Challenges. 2014 International Conference on Reliability Optimization and Information Technology (ICROIT), India, Feb. 6-8, 2014. See also Xu Lei, Li Sha and Ning Huansheng, “Web 3.0 Concept, Connotation, Technology and Development Status,” Journal of Engineering 5 (2023): 774-786.
8. On May 16, 2011, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, submitted a report to the United Nations, stating that “Ensuring universal access to the Internet should be a priority for all countries, given that the Internet has become an indispensable tool for the realization of a range of human rights, the elimination of inequalities, the acceleration of development and human progress. Therefore, each country, in consultation with individuals from all sectors of society, including the private sector and relevant government departments, should formulate a concrete and effective policy to make the Internet widely accessible and affordable to all segments of the population.” See La Rue, Frank “Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression.” The view of La Rue was summarized by scholars as the right to Internet access, See Estes, Clark, The Case for (and Against) Internet as a Human Right. Also see De Hert, P. / Kloza, D. Internet (access) as a new fundamental right. Inflating the Current Rights Framework?” European Journal of Law and Technology 3 (2012): 3.
9. Ma Changshan, “‘The Fourth Generation of Human Rights’ under the Background of Smart Society and Its Protection,” China Legal Science 5 (2019): 5-24.
10. In June 2012, the 20th session of the UN Human Rights Council adopted the “Resolution on the Promotion, Protection and Enjoyment of Human Rights on the Internet,” emphasizing the online exercise of human rights and affirming that rights enjoyed by the people offline should also be protected online. Meanwhile, the resolution decided to continue its consideration of the promotion, protection and enjoyment of human rights on the Internet and in other technological fields, including the right to freedom of expression, and approaches to make the Internet an important tool for development and the exercise of human rights, in accordance with the Council’s programme of work. The resolution considers the Internet a tool for realizing human rights, but does not regard the extension of traditional human rights in the digital sphere as a new type of human right. See “Resolution on the Promotion, Protection and Enjoyment of Human Rights on the Internet,” accessed November 20, 2022. Some scholars in China also hold the same view, arguing that online human rights are a set of basic rights enjoyed by offline netizens when using the Internet, and are essentially still traditional human rights. See Huang Xuexian and Chen Feng, “Study of the Network Human Rights Protection System in the Context of Internet Control,” Journal of Shanghai University of Political Science and Law 2 (2008). Among those holding a similar view, some argue that cyber human rights are an extension of offline traditional human rights in the cyberspace, and are a set of human rights. See Zheng Ning, “Theory and Institution of Human Rights on Internet: International Experience and its Enlightenment to China,” Human Rights 5 (2016): 40.
11. Many scholars argue that digital human rights are a new type of human rights, but for different reasons. Some believe that “digital human rights” are a new type of human right, which includes two aspects. First, the positive aspect, which means that the state should adopt measures to promote and realize digital human rights, such as building Internet infrastructure, enhancing the construction of hardware and software projects, and providing good “Internet +” public services. Second, the negative aspect, that is, the people’s “right to solitude” in the era of big data, including the freedom from being scrutinized and snooped, and the freedom from interference with in their own lifestyle. See Guo Chunzhen, “Governance of Face Recognition Technology Application in Digital Human Rights Era,” Modern Law Science 4 (2020).
12. The Internet is seen as a vast global network of interconnected technologies consisting of heterogeneous information and communication technologies. Kelty and Christopher M., “Internet” in International Encyclopedia of the Social Sciences, edited by Darity and William A., Jr. 2nd ed. vol. 4 (Detroit: Macmillan Reference USA, 2008), 104-107.
13. Michael J. Madison, “Rights of Access and the Shape of the Internet,” 44 Boston College Law Review 433 (2003): 434.
14. Merrill Morris and Christine Ogan, “The Internet as Mass Medium,” Journal of Computer-Mediated Communication, vol. 1, issue 4, March 1 (1996): JCMC141.
15. Lawrence Lessig, “The Zones of Cyberspace,” 48 Stan. L. Rev. (1996): 1403 and 1407-11.
16. Jamie Susskind, Future Politics: Living Together in a World Transformed by Tech (Oxford: Oxford University Press, 2018), 63-64.
17. Jean d’Arcy argued that for too long the people have been so immersed in the thinking of the mass media that they take for granted a one-sided, vertical, centralized flow of information. In the age of the Internet, individuals can participate in horizontal global interactions, and traditional freedoms of speech, press, and the press will be covered by broader communication rights. See Jean d’Arcy, “An ascending progression,” in The Right to Communicate: A New Human Right, edited by Desmond Fisher and L.S. Harms (Dublin, Boole Press, 1983), xxi-xxvi.
18. Radbruch distinguishes between the individual personalities, the supra-individual personality, and the trans-individual personality, see Radbruch, The Philosophy of Law, translated by Wang Pu (Beijing: Law Press · China, 2013), 58-65. (In this version, transpersonalismus is trans. to “supra-individual personality”, while “trans-individual personality” is a more apt translation.)
19. For example, on Dec. 28, 2022, the 10th Integrated Development Conference for China’s Emerging Media Industries used the application scenarios of metaverse technology to connect guests and scholars inside and outside the venue online and offline, breaking the boundary between the physical world and the virtual world through “digital clones”, realizing the extension of personality to the virtual space. See Xinhua News Agency, “Xinhua News Agency Builds a Metaverse Industry Alliance to Explore a New Paradigm of Integrated Media Development,” Xinhua News Agency official website, accessed November 20, 2022.
20. The digital ID system of Estonia breaks down country restrictions, allowing e-resident entrepreneurs from all over the world to access its transparent business environment from all over the world, start a company registered in the EU online and manage their business. Admittedly, this kind of digital ID only realizes the transcendence of the network to a certain extent, and does not completely get rid of the physical space thinking. It is only used for identification and digital documents with digital signatures in the network environment. It does not mean the right to enter or reside in Estonia, nor does it get rid of the management model based on sovereign states, accessed November 22, 2022.
21. Vint Cerf, “Internet Access is not a Human Right,” The New York Times, January 4, 2012, page A25.
22. Frank La Rue, “Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression”.
23. “Resolution on the Promotion, Protection and Enjoyment of Human Rights on the Internet”.
24. Zheng Ning, “The Theory and System of Cyber Human Rights: International Experience and Lessons for China,” Human Rights 5 (2016): 45.
25. Some scholars in China have also put forward the fourth generation of human rights, believing that the “right to harmony” belongs to the category. Others believe that the “right to a better life” should be regarded as a new generation of human rights.
26. Ma Changshan, “‘The Fourth Generation of Human Rights’ under the Background of Smart Society and Its Protection,” China Legal Science 5 (2019): 16.
27. Mathias Risse, “The Fourth Generation of Human Rights: Epistemic Rights in Digital Lifeworlds,” September 17, 2021.
28. Marshall McLuhan, Understanding Media: The Extension of Man, translated by He Daokuan (Nanjing: Yilin Press, 2011), 16-34.
29. Regarding the content of “digital personality”, scholars have put forth different expressions, and there is a lack of accurate and unified interpretation. Wang Xizhen and Peng Chun, “Constitutional Foundation of Personal Data Protection Law in China,” Tsinghua University Law Journal 3 (2021): 24; Li Zhongxia, “The Constitutional Construction of Privacy in the Digital Age,” Ecupl Journal 3 (2021): 44; Zhang Xiang, “Constitutional Justification of the Right to Personal Information-Based on the Reflections on the Differential Protection Theory and the Dominance Theory,” Global Law Review 1 (2022): 59. This paper argues that digital personality is a kind of personality with transcendency, formed by the entry of personality into the virtual space via digital media, and that it contains the connotations of human dignity and free development of personality, and is indispensable for maintaining the independence and autonomy of human will.
30. For the explanation of transcendence, see Zhang Yan, “The Dual Foundation of Cybersecurity Legislation,” Social Sciences in China 10 (2021): 85.
31. This “unify” is reflected in the fact that the boundaries of traditional media have been broken, and digital media have made possible cross-space, cross-country and cross-personality, real-time and interactive communication.
32. In the era of strong artificial intelligence, the definition of human beings will be significantly impacted, mainly manifested in the integration of humanity and machine and the biological human with altered and strengthened genes. However, such human beings are still hypothetical and are not within the scope of this article.
33. Alexander Klimburg, The Darkening Web: The War for Cyberspace (New York: Penguin Press, 2017), 26-45.
34. Take personal information rights and interests for example, Chapter 6 of Part 4 of the Civil Code (2020) regards personal information as a legal interest to be protected by civil law, but the Personal Information Protection Law promulgated in 2021 does not clarify the legal nature of personal information rights, leading to diverging perceptions of the nature of personal information rights. Some scholars believe that the right to personal information is a civil right and interest, see Cheng Xiao, “On Nature of the Right and Interest of Personal Information in the Civil Code of China,” Political Science and Law 8 (2020): 6. Others hold that it is a public law right, see Wang Xizhen and Peng Chun, “Constitutional Foundation of Personal Data Protection Law in China,” Tsinghua University Law Journal 3 (2021): 24; still others argue that the nature of the right to personal information should be determined in specific application scenarios, see Ding Xiaodong, “Reflection and Reconstruction of Personal Information Rights On the Applicable Premise and Legal Interest Basis of Personal Information Protection Law,” Peking University Law Journal 2 (2020): 339.
35. Vgl. R. Alexy, Grundrechte in: H. J. Sandkühler (Hrsg.), Enzyklop?die Philosophie, Bd. 1 Hamburg 1999, S. 527.
36. Zhang Yan, “On the Relationship Between Human Rights and Constitutional Rights,” Jurist 6 (2010): 21-24.
37. Hans Kelsen, General Theory of Law and State, translated by Shen Zongling (Beijing: The Commercial Press, 2013), 516-520.
38. For the quality of legal norms, see Zhang Yan, “Exceptional State and Cultural State with the Rule of Law,” The Jurist 4 (2021): 16-30.
39. Jean-Jacques Rousseau, The Social Contract, translated by He Zhaowu (Beijing: The Commercial Press, 2009), 49-50.
40. Zhang Yan, “On the Relationship Between Human Rights and Constitutional Rights,” Jurist 6 (2010): 22.
41. For the theory of the structure of fundamental rights (Strukturtheorie), see Robert Alexy, Theorie der Grundrechte, Frankfurt/M 1994, S.32.
42. Yao Yuerong, “Justification of Information Self-determination as a Basic Right in China,” Political Science and Law 4 (2012): 72.
43. For similar definitions, see Chen Xingliang, “The Criminal Attribute of Virtual Property and Its Protection Method,” China Legal Science 2 (2017): 146.
44. Zheng Jianing, “A Propose Framework for Digital Property Rights,” Oriental Law 2 (2022): 106. |
