The Protection of the Right to Equality of the Elderly in the Digital Society
HU Minjie* & WANG Jingtao**
Abstract: The inequality faced by the elderly in a digital society is the digital inequality caused by both public and private actions, as well as the societal inequality exacerbated by the digital inequality. The essence of this issue lies in the unequal social participation due to the expansion of digital space under digital inequality. The characteristics of the elderly, combined with their inherent human dignity, determine that the ultimate goal of protecting their right to equality in a digital society is not limited to equal digital rights alone. Instead, it aims to ensure that the elderly have equal opportunities for social participation in both digital and non-digital spaces by eliminating digital inequality and curbing the expansion of digital space. This ensures the autonomy of the elderly in the digital society. Accordingly, the State should implement two policies based on both prohibitive obligations that prevent direct infringements and protective obligations that safeguard the equal rights of the elderly against encroachments from private entities. The first policy, “Digital Integration”, empowers the elderly with digital skills and helps them actively integrate into the digital society. The second policy, “Digital Coexistence,” ensures that the elderly can equally participate in society even when they choose to abstain from digital technology.
Keywords: digital society · right to equality · digital coexistence · digital integration
I. The Raise of the Question
Jean-Jacques Rousseau, in his Discourse on the Origin and Foundations on Inequality among Mankind, divides inequality into two types. One is natural or physical inequality because it is based on nature and arises from differences in age, health, physical strength, and the nature of the intellect or mind. The second is spiritual or political inequality because it arises from an agreement set in motion by virtue of people’s consent, or at least its existence is recognized by all.1 The inequality experienced by the elderly in the digital society is a combination of these two types of inequalities, and is the result of a combination of physical and social factors. On the one hand, the weakened physical functioning affects the elderly people’s acceptance of digital technology; on the other hand, in the process of expanding the digital space, the interests of the elderly people are easily ignored. Thus, they are being placed in a relatively disadvantaged position.
In order to clearly express the gap between those who have a head start in the information technology era, and those who are lagging behind, the concept of the digital divide was introduced in the latter half of the 1990s, which refers to the gap between the information-rich and the information-poor,2including the differences among different countries and groups of people.3 The scope of people involved in the digital divide is basically the same in all countries, i.e., it includes the elderly, the poor, etc., and highly overlaps with the scope of the disadvantaged groups in the original social structure, among which the digital divide faced by the elderly is known as the digital divide of the elderly. The reason why age is an important factor in the digital divide lies in that the older the person, the less likely they are to use ICT.4 Of course, there is actually no shortage of older people who are proficient in digital skills, but on the whole, the elderly are less likely to adapt to the rapid development of digital technology. The weakening of their visual and auditory functions and the blunting of their thinking ability have made it objectively more difficult for them to master digital technology, and they generally lack the ability to disseminate online information and benefit from the internet. More importantly, the sense of alienation created by the digital society has changed the traditional lifestyle of the elderly. All of these factors make it all the more important for China, as it enters the aging era, to address the issue of protecting the right to equality of the elderly in the digital society at an early stage.
The right to equality is one of the fundamental rights, and the constitutional provision on the right to equality is the normative basis for establishing a rationale for the protection of the right to equality of the elderly in the digital society. In this regard, this paper first examines the inequalities faced by the elderly in the digital society. Then, it analyzes the State obligations with regard to such inequalities in the light of the normative connotations of the constitutional provisions on the right to equality and proposes a framework for addressing such inequalities.
II. Double Inequality of the Elderly in the Digital Society
In an increasingly digitalized world, digital technology has become a prerequisite for econo
mic survival.5 There are more and more mobile wearable technologies and apps playing a role in meeting the needs of the elderly in all areas. If products are well-designed and accessible, these technologies can assist to improve well-being and quality of life, support the independence and autonomy of the elderly, and help to reduce their age-related impairments; conversely, they can expose the elderly to digital inequality due to deficiencies in digital accessibility and adaption of technologies to aging. Digital inequality, when combined with the actions of a third party (whether the State or a private entity), may result in social inequality, accelerating the withdrawal of the elderly from all areas of society and leading to their social marginalization.
A. Digital inequality of the elderly
The digital divide directly results from the inequality experienced by the elderly in digital society, including the “access gap” caused by unequal digital access and the “use gap” caused by unequal digital use. The causes of digital inequality among the elderly include both physical inequality and intergenerational inequality. The former refers to the objective weakening of the physical functions of the elderly, which inevitably affects their cognition, acceptance, and learning of digital technology; the latter refers to the fact that the elderly are at a disadvantage in accessing and utilizing digital technology due to the intergenerational gap between them and the young and middle-aged groups in terms of education, work and knowledge environment.
1. Inequality in digital access
Inequality in digital access for the elderly refers to inequality in access to digital devices and information resources,6 which is manifested in two main forms: inequality in access channels and inequality in access methods.
Firstly, inequality in access channels refers to inequality in digital infrastructure, such as network base stations and fiber optics. Although China has realized “broadband access in every village”, which has largely improved the problem of insufficient digital access channels, there is still room for improvement in the quality of digital infrastructure. Inequality in access channels may be related to the overall local economic development level, and in this case, inequality in digital access for the elderly is part of the overall regional inequality, which means that inequality in access channels also exists within the elderly group: The elderly in rural areas are more likely to lack digital infrastructure than the elderly in urban areas, and the elderly in less-developed regions are more likely to lack digital infrastructure than the elderly in more-developed regions. Moreover, inequality in access channels may sometimes also be a particular disadvantage for the elderly due to the digital preferences resulting from group clustering. Currently, the residential segregation between the elderly and the youth is very severe, with a predominance of the elderly left behind in rural areas, aging of communities in small towns, and the concentration of the youth group in large and medium-sized cities, and such phenomenon of group clustering is more likely to cause the occurrence of various types of inequality. In the digital sphere, such inequality is reflected in the concentration of digital information and resources in the youth com munities and the slow flow to the elderly communities, leading to persistent inequality in digital access for the elderly group.
Secondly, inequality in access methods includes both terminal options and tariff options, reflecting both internal differences among the elderly and the product discrimination that the elderly experience. In terms of access terminal options, the elderly are more willing to choose mobile devices with basic calling features. Meanwhile, in terms of tariff options, they also tend to choose the lowest-cost packages, and are more reluctant to pay for higher-rate service offerings that include digital access features. When such consumption habits become a social stereotype of the elderly, enterprises believe that even if this group of people purchases smart products, the monthly cost of the tariffs will be a deterrent for the elderly, who find it difficult to accept new things and are austere in nature.7 As a result, digital technology developers will create a kind of “crowd preference” and selectively ignore the elderly. This would further restrict the space for digital participation of the elderly and plunge them more into inequality of access.
2. Inequality in digital use
Like the universe, the digital world seems to have no boundaries, but the space accessible to the elderly is extremely limited. Young people, as digital natives,8 define the rules and logic of the digital world, weaving digital communities while consciously or unconsciously excluding the elderly, who are digital immigrants. Mainstream software, online communities, and online forums are all tailor-made for young and middle-aged people, and the social rules and internet slangs used in them have distinct group attributes, making it difficult for the elderly to understand these digital contents. Even if they do manage to integrate, due to power inequalities in the process of use, the elderly are always at the end of the information chain and are unable to know and participate in the decision-making process, which leads to explicit or implicit discrimination in their use of digital technologies.
Constructing exclusive digital communities for older persons can be an alternative to integrating into established communities. However, due to factors such as the relatively low percentage of the elderly in the network and the weak potential willingness to spend, Internet commercial organizations have selectively ignored the elderly, driven by the principle of the greatest common denominator of the recipients.9 Even after the initial construction of the digital space, how to sustain the maintenance and development is also a big challenge. The digital world is a field of information inter action, requiring both information output and information input to achieve a two-way flow of knowledge. However, due to the natural aging of the elderly, they are often in a one-way flow of information, and are unable to guarantee the survival of the digital community.
The limited space for digital utilization leads to both qualitative and quantitative shortcomings in data collection on the elderly, which further worsens the digital use environment for the elderly. On the one hand, due to insufficient data collection samples and insufficient data representativeness, problems in digital use, such as the inability of the elderly to perform face and voice recognition smoothly and quickly, arise. On the other hand, data deficiencies can further lead to algorithmic discrimination, which manifests itself in the form of the elderly being labeled with traditional stigma such as “hobbled and weak”, “dependent on care”, “useless and inactive”, as well as “stingy and mean”, and an algorithmic black box of age discrimination will be formed in data-driven application scenarios such as city brains and smart communities, making information control, bullying and invasion of privacy public behavior against the elderly, resulting in institutionalized and systematic violations of the right to survival and development of all the elderly in both real and digital spaces.10 Besides, the rudimentary use of digital technology by the elderly also leads to the fact that they are more likely than other groups of people to be exposed to risks in the use of information technology, such as information leakage, invasion of privacy, and fraud. These risks in the use of information technology make the elderly fearful of the unknown world of information and affect their confidence and motivation to explore the world of information.
With the double inequality of digital access and digital use, the elderly have become a segregated group in digital knowledge. In contrast to the world of digital knowledge, which is rapidly flowing and updating, the elderly seem to be static. While digital technology facilitates access to knowledge, it also accelerates the knowledge inequality between the elderly and other groups of people, as the former either lack access to digital knowledge or only passively accept it. Academically, such a gap in the ability to use digital technologies to change the real life, resulting from unequal digital access and unequal digital use, is known as the knowledge gap, or the third digital divide.11 It is an inequality of access to digital knowledge that directly affects the self-redevelopment of the elderly, making it difficult for them to take advantage of the infinite opportunities that digital technologies offer. Aging is considered a looming crisis that needs to be solved with the help of technology, but the lack of digital use would amplify this crisis, and if digital exclusion prevents the most disadvantaged group of people from engaging with digital technologies, the collective societal interests would then be unfair overall.12
B. Digital inequality exacerbates social inequality
Digital technologies can entrench and exacerbate existing inequalities of power and influence, excluding the most vulnerable, and the enthusiastic and uncritical adoption of new technologies can exacerbate power imbalances in a field long defined by unequal relations.13 Digital inequality can intensify social inequality, leading to increased marginalization of the elderly in terms of social status. The digitization of social space occurs in both work and life, with the digitization of industry exacerbating pre-existing economic inequalities and the digitization of everyday life directly threatening the last line of security for the elderly.
Firstly, digital inequality hinders the re-employment and social integration of the elderly, which in turn exacerbates their economic inequality. The lack of digital skills and digital access to knowledge, coupled with inadequate job security for the elderly, results in the elderly being confined to low-skilled and low-paid activities, a pattern of labor fragmentation that has deepened due to digital inequality. This phenomenon is a collective encounter for the elderly, and even for those who have some social resources, the expansion of the digital public space constrains their spheres of activity.
Secondly, the digitization of everyday life has a direct impact on the established patterns of life of the elderly, leading to the inevitable withdrawal of the elderly from the social sphere, even when they do not need re-employment. The digitization of public services and private spaces, for example, has a direct impact on the quality of life of the elderly: Although public facilities still remain offline, fewer windows mean longer queuing times and poorer service experiences, and the involvement of digital means in private activities such as consumption, film-watching, traveling, etc. is a further obstacle to the realization of the daily needs of the elderly. Compared to the digitization of the world of work, the digitization of everyday life reflects a conscious or unconscious neglect of the elderly by society. In the public’s stereotypical image, most of the elderly people stubbornly cling to their existing lifestyles, reject and have difficulty adapting to digital technology, and are incapable of operating various digital devices proficiently, while digital means are rapidly expanding into the world of life, which is a contradiction that reflects a lack of adequate care for the elderly.
Last, the lack of public expression in digital spaces prevents the elderly from reversing such inequality, and as a result, their social status is further marginalized. Due to its interactivity, wide coverage, real-time immediacy, and visual impact, the role of the Internet in commercial and political expression may be unprecedented.14 In China, various social platforms have become new arenas of public expression, but digital inequality makes it difficult for the elderly to participate in discussions on relevant topics. Lacking full voice and effective division of labor in the digital age, the elderly are vulnerable in the process of policy change, making it difficult to form an intergenerational policy consensus on digital services and management.15
It is worth noting that although physiological factors cause the elderly, rich or poor, to always be at a digital disadvantage, however, due to the existence of social factors, the pre-existing differences in economic and educational levels of the elderly individuals will affect their mastery of digital means and their resilience to the digital divide. Although the withdrawal from the social sphere and the reduction of social resources in the face of the digital divide is an overall phenomenon of the elderly population, there are also digital gaps within the elderly population based on locality, gender, urban-rural disparity, and material wealth, which causes the occurrence of social inequality within the elderly population as well.
III. Rationale for the Protection of the Right to Equality of the Elderly in the Digital Society
In the face of the double inequality in the digital society, what path should the elderly take to achieve equality, and what kind of equality should be achieved? The solution to these questions depends on the jurisprudence of the right to equality of the elderly in the digital society. In other words, the normative connotations and attributes of the right to equality of the elderly determine the rationale for the protection of the right to equality of the elderly.
A. Normative connotations of the right to equality of the elderly
For the socially vulnerable, the right to equality is their primary right, and the constitutional right to equality, as a lever to stabilize the game between individuals and between the individual and the community, is the cornerstone for realizing human rights protection and social stability.16 Article 1 of the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights. The right to equality is a core value sought by all human beings across national boundaries. Article 33 of China’s Constitution stipulates that all citizens of the People’s Republic of China are equal before the law. This is the normative basis for the right to equality of the elderly in China’s law.
The discussion of the constitutional right to equality is premised on two questions: one is the scope of the effect of the constitutional right to equality, i.e., whether the constitutional right to equality requires equality in the application of the law or in its content; and the other is the criteria for the constitutional right to equality, i.e., whether it is equality in form or equality in substance.
With regard to the first question, the text of China’s Constitution expresses that all are equal “before” the law. It is similar in meaning to that of equality in the application of the law, and takes into account the fact that the original wording of the 1954 Constitution was all are equal “under” the law. It is clear that, in the context of the amendments, the legislator wished to limit the scope of the effect of equality to the application of the law.17 Yet, such an amendment was made in the historical context of the legal class perspective at the time of the formulation of the 1982 Constitution. As the awareness of human rights continues to develop in China, the scope of effect of the right to equality should be changed. In fact, there is no absolute one-to-one relationship between whether the constitutional provision uses the term “before the law” or “under the law” and whether the scope of its effect is in the application of the law or in the content of the law. Article 3 (1) of the Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), which, after World War II, continued to use the traditional expression “all persons are equal before the law”, did not ultimately prevent the theory of equality in the content of the law from becoming a prevailing doctrine, nor did it prevent the interpretation of the constitution from understanding this provision as encompassing equality in the content of the law. There is no fundamental difference between “all are equal before the law” and “all are equal under the law” in exegetical constitutionalism. The key to the question only lies in which one is right in the theoretical constitutional law, the theory of equality in the application of the law, or the theory of equality in the content of the law.18 Currently, in terms of constitutional doctrines in China, the theory of equality in the content of the law is the more powerful one.19
With regard to the second question, the right to equality has undergone a transformation from equality in form to equality in substance since modern times. The essence of the modern concept of equality lies in the interchangeability of positions between subjects of personality, so that, in the ultimate sense, equality in form seeks the equality of opportunity guaranteed by the constitution to each individual in the process of the formation and fulfillment of their personality.20 The right to equality in form has a threefold connotation, namely, equality of qualification, equality of content and equality of protection. Equality of qualification means that all persons enjoy legal rights equally, irrespective of gender, race, or social status. Equality of content means the rights enjoyed by different individuals are all the same in content. Equality of protection means that the rights and interests of different individuals are equally protected by the law. Equality in form is based on the modern principle of freedom and the rule of law, which attaches importance to the freedom enjoyed by individuals while advocating equality, and emphasizes equal treatment under the law, which is a great improvement over the hierarchical differences in the express provisions in the law of the feudal era, but it also has the problem of ignoring the differences between individuals and pursuing only formal absolute equality, which often results in substantive inequality, leading to the strong being stronger and the weak being weaker.
As the concept of human rights continues to progress, equality in form has begun to transform into equality in substance, which requires the State to face up to the actual disparities between individuals and to eliminate social inequalities through proactive social legislation and policies. Equality in substance refers to the principle that in order to rectify, to a certain extent, the de facto inequality resulting from the guarantee of equality in form, the preconditions necessary for the formation and development of each individual are to be equally guaranteed in a substantive sense in different ways according to the different attributes of each individual, is also known as “equality of conditions”21 with its core connotation being “same situation, same treatment, and different situation, different treatment”. Equality in substance prohibits unjustified differential treatment and emphasizes equality of outcome through appropriate corrective measures. It pursues substantive justice, recognizes the inequality of starting points between individuals, and achieves equality of outcome through favorable care for vulnerable groups.
Some scholars argue that equality in substance is merely a modern constitutional amendment and supplement to the principle of equality in form, rather than a subversive alternative: the principle of equality in form can still be applied to the guarantee of constitutional rights such as freedom of spiritual and cultural activity, freedom and dignity of the person, and even political rights, whereas the principle of equality in substance mainly applies to the equality of the subjects of rights such as equality between men and women, racial equality and ethnic equality, as well as to the guarantee of socio-economic rights, restoring the reciprocal relationship between the economically powerful and the economically weak that is intrinsically expected by the modern legal system.22
However, judging from recent legislative practices in China, even the right to equality in the field of spiritual and cultural activities has begun to take on the nature of equality in substance. For example, Article 5 of the Law of the People’s Republic of China on Physical Culture and Sports stipulates that “the State shall, in accordance with the law, guarantee the right of citizens to participate in sports activities on an equal footing, and provide special guarantee to the rights of minors, women, the elderly, and persons with disabilities to participate in sports activities”; and the Law of the People’s Republic of China on Public Libraries stipulates in Article 33 that “public libraries shall provide services to the public in accordance with the requirements of equality, openness and sharing”, while in Article 34 (2), that “public libraries set up by the government shall take into account the characteristics of the elderly, persons with disabilities and other groups, and actively create conditions for the provision of literature and information, accessible facilities, equipment, and services adapted to their needs”. These provisions, while providing for the equality in form of citizens’ rights to participate in sports activities and to use public libraries, give reasonable favorable treatment of the elderly and vulnerable groups with regard to their characteristics, fully embodying the connotations of equality in substance. Therefore, to say the least, the constitutional right to equality in China is moving closer and closer to equality in substance.
B. Two possible ways of eliminating inequality
Inequality in form is a form of inequality of opportunity, while inequality in substance is a form of inequality of outcome. The inequalities faced by the elderly in the digital society include both inequality of opportunity and inequality of outcome. As mentioned earlier, the elderly lack the same level of opportunity as other groups of people in terms of digital access and digital use, which is an inequality of opportunity. When equal opportunities exist, the overall lagging behind in digital skills of the elderly as a result of their own physiological factors and shortcomings in knowledge updating capabilities further exacerbates social inequality.
China’s constitutional right to equality guarantees both equality in form and equality in substance, so does this mean that the goal of the protection of the right to equality of the elderly in the digital society is to eliminate the aforementioned inequality in form and inequality in substance, so that, in the end, the elderly are able to achieve the same level of digital skills and access to digital knowledge as young and middle-aged people, or to keep the difference within a reasonable range? If so, the question is, do the elderly have to embrace digital spaces?
The principle of the right to equality, which allows everyone to achieve full participation in social activities while maintaining reciprocal relationships between individuals so as to foster a sense of community, in content, is not limited to political participation but also encompasses a wider range of social statuses that individuals can enjoy.23 Beneath the surface of digital and social inequality, the inequality faced by the elderly in the digital society is essentially an inequality of social participation. On the one hand, the elderly cannot participate in social activities through digital spaces due to a lack of digital skills; on the other hand, opportunities for their social participation in non-digital spaces are also being lost due to the expansion of digital spaces. Inequalities in social participation are not due solely to digital inequality, but are the result of third-party behaviors from the State and society superimposed on digital inequality.
Actually, a mere lag in digital skills does not undermine the right to equality of the elderly. Imagine an extreme scenario: If there were only digital inequality, and the digitization of social life was close to infinitesimal, the elderly would be less overwhelmed. It is the social externalization of the consequences of digital inequality that is the essence of existing inequality. In other words, the expansion of digital space by the State and society in the context of digital inequality socializes the consequences of digital inequality. Of course, it is impossible to utilize digital technology without having an effect on society, but if the State and society unjustifiably expand digital means in inappropriate areas, then it is a conscious or unconscious behavior to use digital inequality to exclude the elderly, which might result in an inequality in the social participation of the elderly.
In summary, the expansion of digital space by the State and society in the context of digital inequality has led to inequality in the social participation of the elderly. The prescription for addressing inequalities in social participation, then, is either to bridge digital inequality or to curb the expansion of digital space. The question is how to choose between the two paths, one or the other or both.
C. The goal of the right to equality for the elderly in the digital society: equality in conformity with human dignity
Each fundamental right implies an element of self-government and self-determination, and human dignity is a generalized principle distilled.24 As a fundamental right, the right to equality is intertwined with the value of human dignity. Kenneth L. Karst, an American scholar, proposed the principle of equal citizenship in order to interpret the right to equality from a broader perspective in light of the relationship between fundamental constitutional rights. The principle of equal citizenship advocates that the connotation of the right to equality, in addition to the prohibition of discrimination perse, has the attributes of both social rights and human dignity. The attribute of human dignity is the essence and fundamental purpose of the right to equality, embodying an ethic of mutual respect and self-respect. Thus, the principle of equality requires not only a certain degree of equality of legal status, but also a greater equality of another socio-factual status.25 Dworkin, on the other hand, considers equality to be one of the connotations of human dignity, which consists of the principle of intrinsic value and the principle of personal responsibility, wherein the principle of intrinsic value means that each person’s life has a special objective value, which corresponds to the political and moral value of equality, and advocates that all persons should be treated with equal attention and respect, which is the core principle of human dignity.26
With regard to the relationship between human dignity and equality, whether it is Karst’s theory that “human dignity is the essence of equality” or Dworkin’s theory that “equality is the core principle of human dignity”, the common point is that human dignity has always determined the value orientation of equality. Equality should be a kind of equality in conformity with human dignity. In terms of connotation, the concept of human dignity is based on the individual. It believes that the autonomy of the individual takes precedence over the value of the State and that each person retains an independent sphere of life that is not subject to the domination of the State as a principle of rational individual autonomy of life. And it emphasizes the dignity of the individual rather than “the dignity of the human person,” “the dignity of the State” or “the dignity of the community.” However, the emphasis on human dignity does not imply the exclusion of the obligations of the individual toward the State and society, only that in fulfilling these obligations, the space for the development of the individu al’s personality should still be preserved. The self-government and self-determination of the individual are the essential connotations of human dignity and the last line of defense, which cannot be violated, deprived, or lost.27 Self-government and self-determination, as opposed to manipulated other-governance or other-determination, are mutually complementary with the concept of “the individual as an end in himself.” Within the limits of the legitimate exercise of fundamental rights, each individual’s opportunity for self-government and self-determination should be fully guaranteed and respected.28
It is important to examine the right to equality of the elderly in the digital society from the perspective of humans’ dignity’s attributes of self-government and self-determination. Theoretically, every member of society should have the freedom to choose their own lifestyle and have their basic needs guaranteed equally regardless of lifestyle, but for reasons of social cost and efficiency of social functioning, the individual, as a member of the community, has a duty of tolerance to accept the necessary established social rules. In the case of the elderly and digitization, however, the elderly cannot yet be considered to have an obligation to be forced to accept digital skills. Unlike students and the young and middle-aged groups, for the elderly, after decades of struggling to create social wealth, enjoying a peaceful old age has always been the main theme of their life. Given the weakening of all physical functions of the elderly, it is an unreasonable burden to force them to master digital technology. Thus, the human dignity attribute of the right to equality of the elderly in the digital society requires that the elderly have the right to digital autonomy, which, in this context, does not refer to the autonomous management of one’s own data in the use of digital technologies, but rather that the elderly should have the right to autonomous choice of participating in society through digital and non-digital pathways.
To sum up, due to the objective disadvantages of the elderly in terms of bodily functions and their “old age status,” the specificity of the protection of the right to equality of the elderly in the digital society lies in the emphasis on autonomy, and the goal of the protection of the right to equality is not to achieve mere digital equality, but to guarantee opportunities for the social participation of the elderly in non-digital spaces so as to achieve equality in conformity with human dignity. And therefore, the two paths of bridging digital inequality and curbing the expansion of digital space should be pursued in parallel, rather than one or the other.
IV. State Obligations to Guarantee the Right to Equality of the Elderly in the Digital Society
The State has the obligation to guarantee the rights of its citizens,29 and it is also the core subject for the guarantee of human rights.30 As a fundamental constitutional right and core human right, the right to equality must be primarily guaranteed by the State, which is jointly determined by the modern view of the State and the nature of constitutional rights. The causes of inequality encountered by the elderly in the digital society include both State behavioral factors, such as the irrational allocation of digital resources by the State and the irrational expansion of digital technology in the field of public administration, and social factors, such as algorithmic discrimination, technological crowd preference, and digital discrimination in the private sphere. These two factors are intertwined and together lead to the limitation of social participation space for the elderly. Therefore, in order to bridge digital inequality and curb the expansion of digital space, not only should the behaviors of the State be restrained, but also the behaviors of social third parties need to be reasonably restricted.
A. Content of state obligations
The primary function of fundamental rights is to regulate the relationship between the State and the individual, requiring the State to refrain from infringing on the fundamental rights of citizens, i.e., the defensive function. As the theory of constitutional law develops, the infringement of fundamental rights by private subjects has also been included in the scope of regulation. In German law, after the 1970s, the function of fundamental rights was expanded. In addition to the original defensive function, it also has the obligatory function of State protection, which requires the State to take active and effective measures to protect the citizens’ fundamental rights from being infringed by private subjects, thus constructing a tripartite relationship of a private person-private person-the State.31 In American law, owing to the promotion of the civil rights movement, the connotation of the right to equality has also been constantly enriched. Specifically, there are two rights: one is the right of inferiority caused by the State’s behavior, for which the State has the obligation to prohibit direct discrimination; the other is the right to demand redress for socially constructed inequalities, for which the State has the obligation to redress socially constructed inequalities32 It can be seen that, in the currently prevailing theory of constitutional jurisprudence, the State obligations corresponding to fundamental rights are no longer the negative obligations to prohibit infringement as in the past, but also include positive obligations of protection.
In China’s law, the object of regulation of the Constitution is not strictly limited to the subjects of public law, and there are quite a few articles regulating the behaviors of private subjects,33 and also many articles similar to the obligation of State protection.34 Moreover, Article 33 (3) of the China’s Constitution clearly stipulates that “the State shall respect and protect human rights,” in which “respect” focuses on the defensive function of fundamental rights, while “protect” requires the State’s active protection. The combination of the two is in line with the protection of the human dignity of citizens as stipulated in Article 38 of the China’s Constitution. Therefore, it can be assumed that China’s Constitution has the normative connotation of requiring the State to actively protect the fundamental rights of the citizens, guaranteeing that they are not violated by the State, while at the same time protecting them from being infringed by private individuals.35 Accordingly, as far as the protection of the right to equality of the elderly in the digital society is concerned, the State is not only prohibited from directly infringing on the right to equality, but is also obliged to protect it from being infringed by society.
In terms of content, the State’s obligation to protect the right to equality of the elderly in the digital society encompasses both anti-discrimination and protecting social rights. First, the essential feature of discrimination is unjustified differential treatment.36 While anti-discrimination prohibits the State and society from treating individuals as inferior or subordinate members or non-participants, and it should also prohibit the stigmatization of groups or individuals, as the essence of stigmatization lies in the fact that the affected individuals are considered to be unequal in some way.37 Therefore, the State focuses on eliminating the digital discrimination suffered by the elderly in both digital and non-digital spaces, one, by prohibiting direct discriminatory actions by public powers in both digital and non-digital spaces, such as prohibiting the public subjects from unreasonably constricting non-digital spaces, and providing digital resources in a differentiated manner, etc.; and two, by actively redressing the digital discrimination faced by the elderly in society, such as eliminating the digital stigmatization and labeling of the elderly, and curbing the unreasonable limitation of the space for social participation of the elderly caused by the behaviors of private social subjects.
Furthermore, the attribute of the right to equality as a social right complements the traditional right to freedom, which orients toward equality in form, and helps to achieve equality in substance.38 In terms of content, the attribute of the right to equality as a social right requires the State to guarantee each individual the necessary standard of living for social participation.39 When poverty prevents an individual from social participation, the State has an obligation to redress such a situation. The relationship between the elimination of poverty and the elimination of discrimination lies in the fact that, in order to fulfill the constitutional requirements for social rights guarantees for the elimination of poverty, it is necessary not only to improve social welfare policies, but also to redress inequalities that lead to poverty, whereas, in order to fulfill the constitutional requirements for the guarantees of the principle of equality, it is necessary not only to take measures to redress the inequalities, but also to improve the social welfare policies, which are mutually complementary.40 Therefore, the State obligations must include material assistance that provides proper support for the impoverished elderly so as to guarantee their opportunities for social participation in both digital and non-digital spaces.
In conjunction with the content of the State obligation to protect the right to equality of the elderly in the digital society, in order to achieve the goal of protecting the right to equality of the elderly in the digital society, the State should implement the following two policies: One is the policy of digital coexistence, curbing the expansion of the digital space, with the aim of providing the elderly with adequate opportunities for social participation in non-digital spaces; and the other is the policy of digital integration, bridging digital inequalities, with the aim of providing the elderly with adequate opportunities for social participation in digital spaces. Both policies regulate the behaviors of the State itself and the behaviors of private social subjects, but it is important to note that the intensity of regulation of the two is not the same due to the self-governing attributes of the private sphere and the limitations of constitutional validity, and that the State’s involvement in the behaviors of private social subjects should be through legislation and comply with the principle of proportionality, so as to avoid excessive restriction on the rights and freedoms of private subjects.
B. The policy of digital coexistence: guaranteeing social participation in non-digital space
Digital coexistence, which refers to the harmonious coexistence of the elderly with the digital society even when they are not familiar with digital technology, is a digital and non-digital coexistence theoretically based on the human dignity attributes of the right to equality. Besides, the concept of risk-taking also provides an argument in favor of digital coexistence. While digital technology offers unlimited opportunities for personal development, it also carries certain unpredictable risks. For example, some studies have shown that effective online voice and video communication using social networking tools can effectively reduce the loneliness of the elderly, lowering the probability of developing Alzheimer’s disease, preventing them from becoming socially disconnected and behind the times, and downplaying the effects of bad moods;41 other studies have reached the opposite conclusion, suggesting that for the elderly who have successfully accessed and used digital technologies, the more they are inclined to use the Internet to access information, the worse their mental health is.42 It remains to be studied what are the risks associated with digital technology as a technological tool that benefits the elderly. It is also unclear what the benchmarks for quality use of digital technology are, what the basis for judging the benefits of digital use is, and what the desired patterns of social participation are.43 In this context, and in conjunction with the concept of risk-taking, the choice of lifestyle should be left to the self-determination of the elderly, based on the provision of as many options as possible.
Specifically, there are three levels of connotations for digital coexistence: first, digital coexistence is a combination of negative and positive protection of the right to equality. On the one hand, digital coexistence requires the State not to discriminate against the elderly and not to restrict the non-digital space in an unreasonable manner. On the other hand, digital coexistence requires the State power to actively intervene in the unreasonable expansion of digital space in the social sphere and to redress existing inequalities. For example, the government should provide public and private subjects with non-digital public goods for the elderly, and legislate to give private subjects the obligation to safeguard the non-digital spaces and appropriately subsidize the costs that private subjects may incur.
Second, digital coexistence is a way of guaranteeing the autonomy of choice in a substantive sense for the elderly. If non-digital spaces can only meet the minimum daily needs of the elderly without the same level of opportunities for social participation as digital spaces, then the so-called autonomy is just a facade. Autonomy in the substantive sense requires the State to eliminate the disadvantages of non-digitization and guarantee adequate opportunities for social participation in non-digital spaces. For example, the State should guarantee non-digital access to knowledge and channels of public expression and ensure social resources in non-digital spaces. On the other hand, due to the overall trend of digitization, non-digital spaces are inevitably encroached upon by digital means, and in this process, the reasonable needs of the elderly may be ignored due to the dissonance of their digital public expression, so the public sector should take the initiative to search, aggregate, collate and analyze the data in which it can speak for the digitally disadvantaged groups, such as children, the elderly and the disabled, and act as the “digital riders” for the elderly, strengthening the link between the virtual and real worlds for the elderly.44
Third, digital coexistence is about limiting the expansion of digital space rather than limiting digital technology itself. Quantitative change affects qualitative change, and while limitations on the space for digital applications may also affect the development of digital technology itself to a certain extent, coexistence in the context of the right to equality of the elderly in the digital society does not mean that it requires the digital technology to impose limitation on itself, but rather that sufficient low-level digital or non-digital living space be retained to meet the needs of social participation for the elderly, outside of the track of high-speed digital innovation.
C. The policy of digital integration: guaranteeing social participation in digital space
In contrast, digital coexistence is a passive and defensive policy, while digital integration is an active and aggressive policy. Digitization is an unstoppable trend, and digital technology and digital transformation hold infinite possibilities for the development of the State and society. In the digital era, vulnerable groups such as the elderly and the disabled need to rely on the empowerment of digital technology, so as to make up for the inconveniences caused by functional deterioration and congenital defects.45 Digital technology can provide the economically, socially, and culturally marginalized elderly with unprecedented space and opportunities for self-redevelopment. Using digital technology, the elderly can also break through physical limitations and find more like-minded people. Therefore, passive digital coexistence is not enough; proactive digital integration policies are also needed to “digitally empower” the elderly, eliminate digital inequalities, and help the elderly integrate into the digital society and truly share the fruits of digital integration.
The elimination of digital inequality does not imply complete equality of digital skills, but should aim at guaranteeing opportunities for social participation. Some scholars believe that from the sociological perspective of network utilization, the digital divide among the elderly is a normal and, strictly speaking, non-eliminable phenomenon, belonging to the sociology category.46 Indeed, from an objective point of view, there are certain differences in the acceptance of new things and skills between the elderly and other groups of people. Due to the weakening of various bodily functions, their mastery of digital technology is also generally inferior to that of other groups, so absolute equality in terms of the outcome cannot be achieved. Gaps within a reasonable range should be recognized. However, such a gap is only reasonable if it is caused by objective differences in conditions that are difficult to redress with existing methods. In other words, when there is a gap in digital skills between the elderly and other groups of people due to the weakening of their physical functions, and such a gap cannot be bridged through appropriate existing means, such a gap is a reason able one that can be tolerated. Yet presently, even the gaps that are solely caused by the weakening of the physical functions of the elderly group have sufficient room for redress. For example, such gaps can be narrowed to a large extent by digital improvements such as aging-friendly technologies. Ensuring adequate opportunities for the social participation of the elderly in the digital space means eliminating, as far as possible, the adverse effects of their own disadvantages in terms of financial capacity, educational level, and physical functioning, and achieving digital integration.
In terms of specific content, the elimination of digital inequalities should be addressed in a targeted manner, distinguishing between inequality in digital access and inequality in digital use. Firstly, achieving equality in digital access is the most fundamental step toward digital integration. Equality in digital access means that the elderly enjoy the same degree of technological accessibility as other groups, and have the same room for choice as other groups in terms of digital access channels and methods, and that the door to the digital era should always be open to the elderly. To this end, various digital infrastructures should be improved, and diversified access terminals that are aging-friendly should be developed. Secondly, when “digitally empowering” the elderly, efforts should be made to shape their self-awareness, help them understand digital technology in a scientific manner, and make efforts to wipe out “digital illiteracy.” Last, equality in digital use should be achieved. Equality in digital use means that the elderly can use the digital space in a fair way, without subjecting to any form of discrimination on the basis of digital rules and digital technology. For example, by means of gerontech and innovation that promotes the synergistic development of aging and information technology, taking into account the development of science and technology and the ability of the elderly to use digital technology,47 the elderly are provided with personalized and targeted services, such as information disclosure and feedback, and channels are expanded for the elderly to engage in social participation through the Internet.48 In the process of digital use, the digital regulatory authority must focus on the protection of the digital privacy of the elderly, and design modes of privacy protection for the elderly that are suitable for their physical and physiological characteristics. For example, digital terminals should be equipped with anti-fraud designs for the elderly, and anti-fraud publicity for the elderly should be increased through various channels. Particular attention needs to be paid to implicit discrimination under the equality of use in the form of algorithmic discrimination. When apparently neutral regulations, standards, or practices are applied to individuals in digital space, it will lead to unequal treatment of people with certain characteristics (usually minorities or other protected groups), which is the main manifestation of algorithmic discrimination, and the societal algorithmic discrimination will be carried out in an even more covert way.49 Therefore, active prevention should be taken to prevent the elderly from suffering damage to their rights and interests without being able to detect it.
D. Paths of policy implementation
In order to implement the policy of digital coexistence and digital integration, it is necessary to legalize the constitutional requirements through legislation and to establish a policy implementation framework led by the government with the participation of multiple social subjects.
1. Legalization of digital policies
The legalization of digital policies refers to the standardization of measures to guarantee the right to equality, such as digital coexistence policies and digital integration policies, through laws and regulations. Specifically, it has two functions: First, for private subjects, because the basic rights provisions of the constitution usually cannot affect the behavior of private individuals,50 it is necessary to impose the obligation of guaranteeing the right to equality of the elderly through laws and regulations, so as to provide a direct legal basis for policy implementation; second, for public subjects, because the direct application of the provisions of the constitution is also limited in practice, it is necessary to turn the State obligations into express provision through laws and regulations. In conjunction with the characteristics of the right to equality of the elderly in the digital society, the following three points should be noted in the legalization of policy contents:
First, restrictions on private subjects should comply with the principle of proportionality. From the perspective of the defensive function of fundamental rights, the exercise of fundamental rights by citizens against the State does not require any justification, whereas the restriction of fundamental rights by the State must be constitutionally justified.51 Therefore, the prohibition of excessive infringement is subject to strict criteria that may not be exceeded by States. The State’s obligation to protect, on the other hand, involves a tripartite relationship of private person-private person-the State. While protecting the equal rights and interests of the elderly, the State may infringe on the rights and interests of other private subjects, for example, by requiring enterprises to develop aging-friendly technologies or businesses to retain access to non-digital services, which may infringe on their freedom of business, and therefore requires a different normative strength than the prohibition of excessive infringement. The fulfillment of the State’s obligation to protect should adhere to the principle of proportionality, and when intervening in the legal relationship of private subjects, attention should be paid to balancing the fundamental rights of all parties, and means taken to achieve the end must be appropriate and necessary, so as to prevent the occurrence of excessive restrictions.52
Second, in terms of scope, the focus has been placed on differences within the elderly group. While the elderly group faces overall inequalities in the digital society, there are also differences within them based on urban/rural disparity, locality, gender, and class, which are part of broader social inequalities. The protection of the right to equality of the elderly in the digital society must take full account of the diversity within the elderly, and the interests of the most vulnerable within the elderly group can be prioritized in formulating policies. For example, in view of the differences in regional development in China, greater support should be provided to the elderly in remote and rural areas; in view of the inequality between men and women, more care should be given to elderly women; and in view of the income differences within the elderly group, the level of material support should be graded according to retirement income and standard of living. Of course, the call for attention to differences within the elderly group is out of the considerations for enhancing the rationality of the policy of digital equality for the elderly rather than unduly increasing the difficulty of achieving the objectives of the policy. As a matter of fact, it is impossible to fully address the needs of each elderly individual, either in terms of legislation or policy implementation, and therefore, diversified policies are a direction rather than an absolute task, and a way of rationally allocating resources in the context of limited resources.
Third, the content should be specific. Digital coexistence and digital integration can find some normative support in existing positive laws. For example, Article 15 (2) of the Data Security Law of the People’s Republic of China stipulates that the provision of intelligent public services shall take full account of the needs of the elderly and the disabled, and avoid creating obstacles to their daily lives. Another example is Article 46 of the Regulations on the Promotion of Digital Economy in Zhejiang Province, which also stipulates that relevant governments and departments need to improve services and safeguards for the use of intelligent technologies by the elderly.53 These are provisions on digital coexistence, but the scope of regulation is “daily life” and the content is just a minimum of “avoid creating obstacles,” which is still a far cry from digital coexistence. Article 3 of the Law of the People’s Republic of China on the Protection of the Rights and Interests of the Elderly stipulates that the State protects the rights and interests of the elderly in accordance with the law, and that the elderly shall have the right to material assistance from the State and society, the right to social services and preferential treatment by society, and the right to participate in social development and to share in the fruits of development. This article provides for digital integration, but it does not directly address the digital society and is only in principle. On the whole, the existing laws and norms are not only few in number, but also, more importantly, poorly operable, with a predominance of advocacy policies, more political and ethical obligations than legal obligations, and overly broad and framed content, with a lack of substance in terms of specific measures, specific departments responsible, concrete objectives, and sources of funding, etc., as well as a lack of clarity on matters such as relevant subjects of obligation and modes of assumption of responsibility.54 China’s legislative practice tends to favor legislation in principle, leaving specific discretionary powers to governments at all levels, and if it is not possible to concretize the content of the policy at the level of laws, then, at least at the level of regulations, the content of the norms should be operable.
2. Government-led multi-pronged policy implementation
The implementation of digital coexistence and digital integration policies needs to be based on a government-led public-private partnership framework. Government leadership is not only due to the State’s obligation to protect fundamental rights, but is also determined by the characteristics of digital development. Equipment costs, service costs, and marketing objectives shape the business model of digital development, in which potential consumers are the ones that marketing personnel try to win over, and relevant digital enterprises adjust their product distribution by targeting potential customers in order to maximize penetration into market segments, while the rest of the groups of people are ignored or suffer from price increases, which can further isolate those who are disadvantaged as a result of the digital divide.55 Therefore, the market alone will not only fail to address digital inequality for the elderly, but will also exacerbate the digital divide among the elderly. In case “the market fails,” the “hand of government” needs to intervene in a timely manner. Governments at all levels should play the primary role in terms of digital equality of the elderly. Besides, the functions of grass-roots units should be paid attention to. For example, the community is the main premise where the elderly integrate into social life, and knowing the basic situation of the elderly within the community plays a significant role in bridging the digital divide. However, in practice, communities that are at the end of social governance generally have limited funds, lack relevant resources and face a shortage of professionals in the field of digitization, which makes it difficult to effectively carry out some of the work related to the elderly, and fails to respond in a timely manner to the basic demands of the elderly to participate in digital life on an equal footing, so the construction of intelligent community and the provision of intelligent services are out of touch with the actual needs of the elderly.56 Therefore, in order to give full play to the positive role of grass-roots units in the digital integration of the elderly, the responsibilities of the community should be clarified through legal norms, powers should be delegated, and financial and talent support should be given to the communities.
Second, the protection of the right to equality of the elderly in the digital society also requires the pluralistic participation of society and private subjects. The protection of the right to equality of the elderly in the digital society is a proposition with broad scope and detailed content. With limited power, the government cannot cover everything by relying on public power alone, and must cooperate with private subjects. The participation of private subjects can prevent “government failure” caused by the inefficiency of government institutions, the conflict between government intervention and market operation mechanism, the misplaced role of the government, and incomplete information.57 Government intervention in the process of resource allocation should be in line with the market rules, and the inefficiency of public administration compared to the market determines that the market and enterprises should lead digital applications and the updating of digital skills. The law should respect the autonomy of private subjects and should not impose excessive obligations on them, but should provide them with subsidies in the form of financial and policy support.
V. Conclusion
Through the dual-track policy of digital coexistence and digital integration, the State and society provide all the elements to ensure the elderly enjoy full autonomy to decide on a digital or non-digital lifestyle. On the one hand, the elderly can maintain their original lifestyles while still retaining full opportunities for social participation. On the other hand, the elderly can actively and equally participate in digital life and share the fruits of digital life as long as they wish to do so. In this State, the human dignity of the elderly is fully respected, both by eliminating the sense of inferiority that they are a burden on the digital society and by being free from digital discrimination from others, a state of full and substantial equality for the elderly in the digital society. Of course, in reality, the irreversible trend of social digitization will make it more and more difficult to achieve such equality, and the mix of the elderly group’s own physical functioning and the differences of the original social structure will also bring considerable obstacles to the realization of such equality. However, as Jeremy Bentham said, it is an illusion to establish complete equality, and all we can do is to reduce inequality.58 In the current and future digital society, the protection of the right to equality of the elderly is to continuously and as far as possible reduce those inequalities that are against human dignity and hinder social participation.
(Translated by ZHANG Lianying)
* HU Minjie ( 胡敏洁 ), Professor, Guanghua Law School, Zhejiang University.
** WANG Jingtao ( 汪敬涛 ), Doctoral candidate, Law School of Zhejiang University. This paper is a stage result of the youth project of the National Social Science Foundation of China — “Research on the Theoretical Development of Administrative Organisation Law in the Context of Institutional Reform” (Project No. 19CFX020).
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8. Digital natives are those groups of people who are confronted with a world of ubiquitous network since birth. The network is their life and digital survival is their way of being since childhood. These people, born in the digital era and with inherent technological enlightenment, can redefine social culture, values, and rituals, and create brand new digital social environments, by virtue of their advantages in mastering digital technologies. See Li Wei, “Where to Go for Online Consumption in the Context of Population Aging? — An Analysis of the Current Situation of Online Consumption Market of Products for the Middle-aged and Elderly,” Academic Journal of Lanzhou 3 (2017).
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20. Han Dayuan, Lin Laifan and Zheng Xianjun, Thematic Studies in Constitutional Law, 293.
21. Ibid., 296.
22. Ibid., 297.
23. K. Karst, “The Supreme Court, 1976 Term, Foreword: Equal Citizenship under the Fourteenth Amendment,” Harvard Law Review 91 (1977): 1-62.
24. Li Huizong, The Protection of Human Dignity and Human Rights (Taipei: Angle Publishing, 2011), 13.
25. K. Karst, “The Supreme Court, 1976 Term, Foreword: Equal Citizenship under the Fourteenth Amendment,” 5-6.
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27. Li Huizong, The Protection of Human Dignity and Human Rights, 11, 14 and 15.
28. Ibid., 13.
29. There is a consensus that civil rights correspond to State obligations, but opinions differ as to the basis of legitimacy of State obligations, ranging from the dignity of human nature to the objective order of values of fundamental rights to the outlooks on the state of social contract, social connectionism and etc. Moreover, there are also differences of opinion as to the content of State obligations, ranging from the theory of negative obligations, to the theory of positive obligations, from the theory of obligations to recognize, respect and guarantee, to the theory of obligations to respect, protect and fulfill, etc. For details, please see Du Chengming, “On State Obligations of Fundamental Rights: Theoretical Basis, Structural Forms and Practice in China,” Law Review 2 (2011); Cui Hanyu, “Theoretical Origins and Orientation of State Obligations in China’s Constitution,” Journal of Gansu Political Science and Law Institute 6 (2016); and Jiang Yinhua, “On the Value Basis of State Obligations,” Administrative Law Review 1 (2012).
30. Zhu Jun, “The Composition of the Theory of State Obligations from the Perspective of Systemic Theory: System and Method,” Academic Journal of Fujian Administrative College 3 (2017).
31. Chen Zheng, “The Function of the State’s Obligation to Protect Fundamental Rights,” Chinese Journal of Law 1 (2008).
32. Masaaki Takahashi, “On the Interpretation of the Constitutional Principle of Equality (II) — Toward the Correction of Social Structural Discrimination,” Journal of Law, vol. 178, no. 2 (2015): 109.
33. For example, Article 36 (2) stipulates that no state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion. Article 40 stipulates that no organization or individual may, on any ground, infringe upon citizens’ freedom and privacy of correspondence. Similar provisions can be found in Articles 41, 51 and 53.
34. For example, Article 13 (1) stipulates the State protects the right of citizens to own lawfully property, Article 13 (2) stipulates that the State protects according to law the right of citizens to inherit private property. Article 36 (3) stipulates that the State protects normal religious activities. Similar provisions can be found in Article 37 (1), Article 38, Article 39, Article 49 (1) and Article 50.
35. Chen Zheng, “The Function of the State’s Obligation to Protect Fundamental Rights,” Chinese Journal of Law 1 (2008). Wang Xixin, “The State Obligation to Protect Personal Information and Others,” China Legal Science 1 (2021).
36. Zhou Wei, “On the Prohibition of Discrimination,” Modern Law Science 5 (2006).
37. K. Karst, “The Supreme Court, 1976 Term, Foreword: Equal Citizenship under the Fourteenth Amendment,” 6.
38. Akira Osuga, On the Right of Survival, translated by Lin Hao and proofread by Wu Xinping (Beijing: Law Press · China, 2001), 36.
39. Masaaki Takahashi, “On the Interpretation of the Constitutional Principle of Equality (II) — Toward the Correction of Social Structural Discrimination,” 107.
40. Ibid., 109.
41. Zhou Yu, “The Current Situation and Implications of the Digital Divide among the Elderly in the U.S. in the Age of Intelligence,” Social Sciences Abroad 6 (2022).
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43. Tomohisa Hirai, A Study on the New Digital Divide: An Attempt to Approach the Value Judgment of Internet Theory, Media — Communication, No. 59 (2009), page 157 and following.
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45. Ibid.
46. Cao Rongxiang, “Introduction to the Digital Divide: Information Inequality and Digital Opportunity,” Marxism and Reality 6 (2001).
47. Yang Bin and Jin Dongchang, “Digital Divide in the Elderly: Manifestations, Motivations, and Paths to Bridging,” Academic Journal of Zhongzhou 12 (2021).
48. Lu Jiehua and Wei Xiaodan, “The Analytical Framework, Concept and Path Choice of Redressing the Digital Divide among the Elderly Based on the Perspective of Digital Divide and Knowledge Divide Theory,” Population Research 3 (2021).
49. Cui Jingzi, “The Crisis of and Response to the Protection of the Right to Equality under the Challenge of Algorithmic Discrimination,” Science of Law 3 (2019). With regard to the patterns and types of algorithmic discrimination, see Cao Bo, “Algorithmic Discrimination and Reconstruction of Regulatory Paradigm,” Modern Law Science 4 (2021).
50. Regarding the effectiveness of the Constitution on behavior of private individuals, please see Jiang Feng, “Facts and Norms in the Private Effectiveness of the Constitution: An Analytical Framework,” Studies in Law and Business 1 (2020).
51. Chen Zheng, “The Function of the State’s Obligation to Protect Fundamental Rights,” Chinese Journal of Law 1 (2008).
52. Zha Yunfei, “The Rules and Regulation of Ride-sharing from the Perspective of the State’s Obligation to Protect — Taking 35 Local Normative Documents as the Object of Analysis,” Journal of Soochow University (Law Edition) 1 (2019); Liang Hongxia and Wang Fang, “The State’s Obligation to Protect the Right to Rest in China from the perspective of the ‘996 Work System’,” Journal of Southwest University of Political Science and Law 6 (2019).
53. Regulations on the Promotion of Digital Economy in Zhejiang Province adopted at the 26th Meeting of the Standing Committee of the 13th People’s Congress of Zhejiang Province on December 24, 2020.
54. Yang Haikun, “The Constitutional Right to Equality and the Legislative Guarantee of the Rights of the Weak — Taking the Legislation on the Protection of the Rights and Interests of the Elderly as an Example,” Law Science Magazine 10 (2013).
55. Cooper and Mark N., “Inequality in Digital Society: Why the Digital Divide Deserves All the Attention it Gets,” Cardozo Arts & Ent. LJ 20 (2002): 101.
56. Miao Zhenggun, “The Path to Bridging the Digital Divide among the Elderly,” Changbai Journal 1 (2023).
57. Huang Xinhua, “From Market Failure to Government Failure — Debates and Reflections on the Relationship between the Government and the Market,” Journal of Zhejiang Gongshang University 5 (2014).
58. J. Bentham, “The Theory of Legislation,” The Philosophical Review 41 (1932): 645.
