The Prosecutorial Protection of Digital Human Rights
ZHANG Jie*
Abstract: In the digital age, the rise of digital human rights has become an important expansion in the field of human rights. When advancing digital prosecution strategies, prosecutorial agencies should pay greater attention to the protection of digital human rights.The fragile state of digital human rights and the unique position of prosecutorial agencies in human rights protection make it imperative that prosecutorial agencies place more emphasis on fulfilling their responsibilities in legal oversight to promote the protection of digital human rights. Currently, prosecutorial agencies have strengthened the protection of digital human rights through such measures as promoting legal oversight with big data, enhancing the handling of criminal cases involving citizens’ digital human rights, expanding the scope of public interest litigation protecting digital human rights, and improving their roles in civil and administrative prosecution. However, there are still challenges related to the inadequacy of updating the mindset,the incompleteness of measures, and the lack of innovation in mechanisms and systems. Therefore, prosecutorial agencies should further align with the implementation of digital prosecution strategies, update their human rights protection concepts, intensify efforts to combat cybercrime, strengthen the protection of citizens’ personal information through prosecution, enhance public interest protection of collective digital human rights through public interest litigation, and actively innovate prosecutorial work mechanisms and systems to bolster the protection of digital human rights.
Keywords: digital human rights · legal supervision · prosecutorial protection · four-pronged procuratorial protection
In the digital age, the human rights of citizens are increasingly presented in digital form in cyberspace. The emergence of digital human rights has broadened the scope of human rights and is called one of the “principal marks of the human rights system in the new era” in academic circles.1 With the advent of the digital age, however, there are social transformation trends such as the physical time-space dissolution, the blurring of sovereign boundaries, the state-society confusion, and the biological-digital dual humanity,2 which result in inadequate protection of human rights, especially more challenges and infringement on the rights to individual privacy, personal information,and the public’s right to know in cyberspace. The protection of digital human rights has become an issue that is gaining increasing importance. The prosecuting bodies are the state departments in charge of legal supervision and play a particularly crucial role in the protection of human rights. In the context of digitization, it is an important dimension of human rights protection to examine how to capitalize on the advantages of digital procuratorial work to better protect citizens’ digital human rights based on the function of legal supervision. It is also an important means to expand the perspective of procuratorial work.
I. The Certification of Theory of Procuratorial Protection of Digital Human Rights
A. The concept and scope of “digital human rights”
Today’s world is undergoing momentous changes unseen in a century. Digital technologies represented by the Internet, big data, cloud computing, and artificial intelligence are deeply integrated with economic and social development, work and life.It can be said that humankind has embraced a new model of digital survival. Based on the Universal Declaration of Human Rights adopted in 1948, Robert B. Gelman proposed the Declaration of Human Rights in Cyberspace in 1997, advancing the concept of “digital human rights”. And as digital information progressed, a host of public debates have been conducted around the world, having a direct bearing on the formulation of digital human rights policies and regulations. In 2011, the United Nations recognized the “right to Internet access” as a fundamental human right. On June 27, 2017, the UN Human Rights Council adopted a resolution on the Promotion,Protection and Enjoyment of Human Rights on the Internet, calling on the international community to attach more importance to digital human rights. In 2018, the United Nations adopted the Strategy on New Technologies report, which further expounded on the importance of incorporating the values enshrined in the UN Charter and the Universal Declaration of Human Rights into the development of new technologies. In May 2020, the 74th session of the General Assembly of the United Nations issued the Secretary-General’s report: “Recommending the protection of digital human rights,including avoiding the violation and erosion of human rights by technology, and the exacerbation of discrimination and inequality”. The concept of “digital human rights”was formally put forward at the United Nations.
In China, Prof. Zhang Wenxian put forward the concept of “digital human rights”in June 2019, advocating that “there is no digital technology without human rights,”3 which has exerted a significant impact. Prof. Ma Changshan noted that with the dawn of the digital age, it is necessary to incorporate the value of “digital human rights” into public policies and better balance rights and interests in “digital human rights4. At the same time, Prof. Ma Changshan pointed out: “The new business forms and models in a networked, digital and smart society have brought profound changes to human rights concerning personality and person, freedom and equality, labor and employment, and education security. The protection of human rights in the new era confronts arduous tasks and tests.”5
In terms of content and scope, digital human rights, a new type of human rights,are not totally separated from traditional human rights. Digital human rights havenew content as a result of the transformation of traditional human rights, resulting in a unique theoretical system. In terms of content, “the essence of digital human rights lies in upholding the value of human rights and defending man’s subjectivity amidmultiple changes in the digital age, and using human rights as ‘values in a valueless world’6 to evaluate or guide the application of digital technology in society.”7 In terms of scope, where digital human rights are discussed at the level of the legal system, it is necessary to realize the “normative construction of digital human rights”, that is, to“transform digital human rights from values into institutional norms that are integrated into the existing legal system.” Specifically, “digital human rights fall into four types of second-order rights: digital survival right, digital freedom right, digital equalityright, and digital relief right in terms of content, and an open rights system will be derived there from.”8
B. The fragile digital human rights call for better procuratorial protection
In the digital age, digital human rights are generally in a fragile state, and judicial bodies, including prosecuting bodies, are required to tighten their protection because the deep involvement of the Internet in the economy and society in the digital age has given rise to a high incidence of cybercrime, constituting a direct threat to digital human rights. “In countries such as the United Kingdom and the United States, cybercrime tops the list of crimes. In China, cybercrime accounts for nearly one-third of the total number of crimes, with an upward trend every year.”9 Cybercrime directly violates citizens’ digital human rights, such as the right to privacy. The all-pervading data analysis, data profiling, and targeted push in the Internet era lay bare traditional privacy. It is difficult for individuals to recover their “rear gardens” that were unknown to others. In fact, they have become “the public without privacy”10. Personal privacy has come under unprecedented threats and challenges. Moreover, cybercrime is the direct culprit behind the high incidence of telecom fraud, infringing on the substantive property and personal rights of citizens.11 It can be said that in the era of big data, the targets of data crime have shifted from the security of computer information systems of commercial institutions and social organizations to the rights and interests of personal data or corporate data. The threat of the black market for personal data is especially severe. Cybercrimes all too often infringe on citizens’ digital human rights and also violate citizens’ personal dignity and personal freedom, among others. It is necessary to bring into play the legal supervision function of prosecuting bodies to tackle cybercrimes in a timely manner.
Furthermore, cyberviolence has caught attention in recent years. Cyberviolence usually features unknown perpetrators, diverse forms of perpetration, and random targets, resulting in grim consequences. Cyberviolence can easily go viral and is difficult to investigate.12 Cyberviolence not only directly infringes on citizens’ rights to reputation and freedom in digital space, but also all too often causes mental damage such as depression to victims, and even leads to self-mutilation and suicide. “Social death” shows the characteristics of infringement of digital human rights that harms substantive personality rights, right to reputation, personal right and even the right to life. In view of this, the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Public Security issued judicial interpretation documents, which require that prosecuting bodies fulfill the function of legal supervision, perform the functions of approving arrests and initiating public prosecutions, and effectively crackdown on and prevent cyberviolence that infringes on personality right, and that is suspected of provoking troubles, insulting and slandering, etc., so as to prevent criminal infringement of citizens’ digital human rights. At the same time, the Supreme People’s Procuratorate requires tightening the procuratorial supervision over placing cases on file. As regards cyberviolence cases involving insults, defamation, infringement of citizens’ personal information, etc., the people’s procuratorate should require the public security body to explain the reasons for not filing a case if the people’s procuratorate deems that the public security body should file a case for investigation but does notdo so, or if the victim deems that the public security body should file a case for investigation but does not do so, and files a request with the people’s procuratorate. Where the people’s procuratorate finds that the public security body’s reasons for not filing a case are untenable, it should notify the public security body of the need to file a case,and the public security body should file a case after receiving the notice.
C. The rise of digital procuratorial service provides an opportunity to strengthen the protection of digital human rights
In practice, the emerging digital procuratorial service has provided an opportunity to strengthen the protection of digital human rights in recent years. Digital procuratorial service, also known as “digital and smart” procuratorial service, is manifested as the integration of technological innovation achievements such as big data and artificial intelligence with legal supervision work, as well as the establishment of digital model and supporting systems for legal supervision, for the sake of facilitating legal supervision.13 The rise of “digital procuratorial service” objectively affords the ideal opportunity for the protection of digital human rights. In the context of digital procuratorial service, prosecuting bodies employ technologies such as big data, artificial intelligence, and the “metaverse” to focus on key issues such as how to enhance data transparency, respect users’ right of choice, protect individual privacy, and restrict high-risk applications, thereby effectively strengthening the legal guarantee for digital human rights.
Digital human rights are essentially concerned with the extension of human rightsin the digital space, while the digital procuratorial service focuses on the use of big data. The two operate under the same basic concept. At the same time, digital procuratorial service focuses on the collection, storage and protection of data and information,and the use of big data analysis in its work helps discover the prevalence and tendency of human rights violations in the digital field. It also employs procuratorial and legal supervision to address violations. Moreover, the rise of digital procuratorial service will necessitate training a large number of case-handling teams and procuratorial professionals who are adept at using big data technology and aware of the importance of data and information, thereby facilitating the procuratorial protection of digital human rights. It can be said that the “digital procuratorial service” provides the ideal institutional environment for the procuratorial protection of digital human rights.
D. Prosecuting bodies should attach importance to the protection of digital human rights due to their special litigation status
Prosecuting bodies hold a special status in the protection of human rights. The procuratorial protection of digital human rights should be strengthened because the prosecuting body is the only organ involved in the entire process of criminal proceedings and also because it exercises public interest litigation rights on behalf of state interests and public interests and bears the statutory duty to supervise civil and administrative litigation activities. It can be said that prosecuting bodies are fully involved in the four areas of litigation, having a special position and playing an important role inthe protection of human rights. From the perspective of the exercise of citizens’ digital human rights, the exercise of the legal supervision function by prosecuting bodies has a direct bearing on the exercise and enjoyment of citizens’ rights to digital equity anddigital relief.
So that prosecuting bodies perform their legal supervision duty in accordance with the law, China has designed specific systems that play an irreplaceable special role in the judicial protection of human rights, and also play an important role in issues concerning the protection of citizens’ digital human rights. For example, in criminal proceedings, prosecutors have a duty to uphold objectivity and impartiality. “As the guardian of the law, the prosecutor ensures that objective legal intent runs throughout the criminal procedure. In addition to prosecuting crimes, the objective legal intent plays a more important role in protecting civil rights.”14 Therefore, the Criminal Procedure Law of China stipulates that the people’s procuratorate should examine and verify the legality of the public security organs’ evidence collection. As a result, prosecuting bodies play a specific and important role in excluding unlawfully obtained evidence. At the same time, it also ensures the protection of important human rights, such as citizens’ right to have a lawful trial in criminal proceedings as stipulated in the International Covenant on Civil and Political Rights. Regarding the protection of citizens’ digital human rights, a lot of evidence appears in the form of digital evidence in relevant criminal cases, and characteristics such as complexity and ease of loss of evidence make it significantly more difficult to handle cases. Prosecuting bodies are required all the more to step up efforts to review evidence and exclude unlawfully obtained evidence and perform evidence collection and review functions in an objective and fair manner, ensuring that suspects’ rights to digital equity and digital relief are realized in special forms in special fields. In another example, the Civil Procedure Law provides for a system of support for prosecution. Where the rights and interests of special groups such as the elderly, the disabled, women, children, and migrant workers are infringed, but they are too weak to prosecute, the procuratorate can support the prosecution. The equal protection and effective realization of digital human rights for special groups is a difficulty in the protection of digital human rights. Moreover, in the digital age, massive data and information are constantly constructing and deconstructing the daily lives of all people. The right to data and information is undoubtedly an important and basic human right in that it “concerns the personal dignity and freedom of individuals”15. However, data and information of individuals are likely to be abused by super commercial organizations or large online platforms. “All the data are generated by us, but their ownership belongs to others.”16 The general public has no idea to what extent and how much personal data and information is in the hands of others. Even if the general public wants to protect their personal privacy, data rights, and information freedom, or fight discrimination, they lack the ability, means and methods to do so. The increasing infringement of human rights and the lack of protection of human rights are becoming more and more prominent.17 As representatives of the public interest, prosecuting bodies can employ procuratorial public interest litigation and other methods to prosecute the collective infringement of information, privacy, data rights, etc., to protect the public interest. As a consequence, prosecuting bodies should assume more responsibility in protecting citizens’ data and information and safeguarding their digital human rights.
II. The Practice Pattern of Procuratorial Protection of Digital Human Rights
A. Content: The “four-pronged procuratorial protection” strengthens the protection of digital human rights
In the new era, procuratorial work is carried out under four procuratorial strategies: criminal, civil, administrative, and public interest litigation. Prosecuting bodies play an important role in the protection of digital human rights because the key performance of procuratorial functions and the comprehensive performance of duties are combined to strengthen the linkage protection of digital human rights. They strengthen the protection of civil rights of digital human rights while penalizing crimes that infringe on digital human rights. While urging relevant administrative law enforcement agencies to perform their duties through administrative procuratorates, they incorporate the widespread infringement of digital human rights into the scope of public interest litigation for protection. The “four-pronged procuratorial protection” is coordinated to provide a more comprehensive basis for the protection of digital human rights.
1. Strengthen the prevention and control of crimes involving citizens’ digital human rights. Prosecuting bodies enhance the protection of digital human rights and step up efforts to handle cases, which is reflected in the greater efforts to handle criminal cases involving citizens’ digital human rights under the guidance of criminal prosecution. Currently, criminal cases involving infringement of citizens’ digital human rights are primarily manifested in cases of infringement of citizens’ personal information, insult and defamation, and infringement of citizens’ right of personality in cyberspace. According to statistics, recent years have seen a marked increase in cases of insulting, defamation, and infringement of citizens’ personal information in cyberspace, as well as cases of infringement of citizens’ portrait right and personality rights in cyberspace and cases of infringement of others’ freedom of expression in cyberspace, and the right to disseminate works with intellectual property rights online. In the five years from 2018 to 2023, prosecuting bodies prosecuted 14,000 people for insults, defamation, and infringement of citizens’ personal information in cyberspace.18 In view of the grim situation, prosecuting bodies have stepped up efforts to approve procuratorial arrests and initiate incidental civil public interest litigation cases related to criminal cases for infringement of citizens’ rights to reputation and privacy in cyberspace in the form of cybercrimes, severely punishing crimes by giving full play to procuratorial functions. In particular, the crimes of insult and defamation, particularly the crime of online defamation that infringes on the right to reputation of others, are dealt with in accordance with the provisions of the criminal law only when they are informed, except for those that seriously endanger social order and national interests. However, in practice, since such crimes are generally perpetrated in cyberspace, it is often difficult to investigate and garner evidence when rights are infringed. Victims who resort to private prosecution to protect their rights face constraints such as difficulties in collecting evidence and insufficient means to maintain their rights. In order to better protect citizens’ digital human rights, the Supreme People’s Procuratorate conducted argumentation and research and expanded the scope of application of the “private prosecution to public prosecution” for online insult and defamation cases, fast-tracked the handling of the “case in which a woman who was collecting a shopping package was rumored to cheat on her partner” in the form of public prosecution, and treated the case as a guiding case. This established the principle of public prosecution for the protection of online personality rights, with good results achieved. In 2022, prosecuting bodies prosecuted 3,436 people in the form of public prosecution for crimes such as online defamation, insult, and infringement of citizens’ personal information, up by 51.3% year-on-year.19 In addition to cracking down on crimes of infringing on citizens’ personal information in accordance with law, prosecuting bodies prosecute network operators as a co-defendant in the form of a civil public interest lawsuit attached to criminal cases, ordering them to bear responsibility for public interest damage. It can be said that the handling of typical cases serves as an exemplary role of urging online platforms to pay more attention to the performance of their responsibilities as the principal entity and to protect citizens’ digital human rights.
2. Ensure the protection of digital human rights through the performance of civil procuratorial duties. In recent years, prosecuting bodies have fulfilled their duties of civil procuratorial supervision to tighten legal supervision of the enforcement of civil trials in cases involving digital human rights and made great progress in this regard. “Judicial adjudication of digital disputes is characterized by greater uncertainty and more significant value judgment.”20 In the field of civil judicature, prosecuting bodies perform their duties, leading social values through typical cases and promoting the protection of digital human rights. In particular, prosecuting bodies play an active role in discovering leads on legal supervision in accordance with their authority and step up efforts to find leads in civil false litigation cases, which become the focus of civil procuratorial duties. Furthermore, prosecuting bodies supervise the people’s courts so that they make fair judgments in cases where Internet big data platforms abuse their monopoly to infringe on the digital human rights of others, playing an active role in protecting citizens’ digital human rights. In view of the problem that special groups are unable to fully enjoy digital human rights, prosecuting bodies support prosecution and urge the people’s courts to hear cases involving the digital human rights of special groups in a timely manner, thereby ensuring the equal protection of citizens’ digital human rights. Regarding the intellectual property procuratorial work, prosecuting bodies leverage their strengths in civil prosecutorial supervision, raise prosecutorial protests against unlawful or obviously improper civil judgments, and make procuratorial suggestions for retrial in order to protect citizens’ online privacy rights and the right to disseminate information on the Internet, thus making civil procuratorial work a fundamental guarantee for citizens’ digital human rights.
3. Use administrative procuratorial rights to urge administrative organs involved in citizens’ digital human rights to perform their duties. Regarding administrative procuratorial work, prosecuting bodies leverage their strengths in reviewing the legality of administrative acts, take legal supervision measures to urge relevant administrative organs to perform their duties, tighten regulation of internet platforms, and protect citizens’ digital human rights. In view of the conduct in cyberspace that infringes on the digital human rights of vulnerable groups such as minors, the elderly, and left-behind women and children in rural areas, prosecuting bodies urge administrative organs to perform their duties in a timely manner and demand corrections and punishments to protect citizens’ digital human rights. At the same time, in the course of handling criminal cases, prosecuting bodies achieve a better connection between administrative penalty and criminal justice, put forward procuratorial opinions on cases involving citizens’ digital human rights that do not constitute a crime in accordance with law and are not prosecuted at the procuratorial stage, and hand over the cases to administrative organs for administrative punishment such as caution, fines, revocation of license, and restrictions on employment, in order to prevent a disconnection in punishment on the issue of digital human rights protection, and ensure more comprehensive and effective protection of citizens’ digital human rights.
4. Broaden the field of public interest litigation for the procuratorial protection of digital human rights. Undoubtedly, digital human rights are characterized by the nature of public good. The Personal Information Protection Law contains a clause on public interest litigation, which incorporates the protection of personal information into the statutory field of public interest procuratorial litigation. In order to ensure the protection of citizens’ personal information in public interest litigation, the Supreme People’s Procuratorate issued the Circular on Implementing the “Personal Information Protection Law” and Promoting the Public Interest Procuratorial Litigation on Personal Information Protection on September 27, 2021, to promote the execution of public interest procuratorial litigation for personal information protection. Prosecuting bodies foster coordination and cooperation with other functional departments responsible for cyberspace affairs, industry and information technology, public security, market regulation, and education, among others, to better handle public interest litigation cases involving major cyberspace infringements related to the online black market and data security, producing better results in the protection of personal information in cyberspace.21 According to data released by the Supreme People’s Procuratorate, prosecuting bodies nationwide have filed and handled 8,361 public interest litigation cases in the field of personal information protection since 2019, with an upward trend.22 Moreover, in cases that infringe on citizens’ digital human rights and involve major public interest, prosecuting bodies may also file a punitive damages lawsuit in the form of a criminal case accompanied by a civil public interest lawsuit in order to better protect the rights of the parties and ensure more comprehensive compensation and restoration for the infringed digital human rights. Where cyberviolence harms the pub lic interests, the people’s procuratorate may file a public interest lawsuit at a people’s court according to law to require correction and prevention. Where it is found that network service providers do not perform information network security management obligations according to law in respect of information on cyberviolence, resulting in the widespread dissemination of illegal information or other serious circumstances and harming the public interest, the people’s procuratorate initiates public interest litigation at a people’s court according to law, urging the relevant market entities to perform social responsibilities by putting matters right.
B. Methods: Strengthen the protection of digital human rights with a focus on big data-based legal supervision
Due to the prosecuting bodies’ positioning for legal supervision, the legal supervision measures they take are always based on the idea of restricting and supervising state power and protecting citizens’ rights. Compared to public security organs that exercise investigative functions and people’s courts that exercise adjudication functions, prosecuting bodies take a wider range of supervision measures and more flexible and diverse means for protecting digital human rights. Currently, prosecuting bodies are implementing the “digital procuratorate” strategy, employing big data to strengthen legal supervision. In this context, based on data analysis and mining, prosecuting bodies can play a better role in the timely discovery of leads on crimes and the comprehensive use of legal supervision measures in the judicial protection of digital human rights.
Specifically, the important methods adopted by prosecuting bodies for protecting digital human rights fall into the following categories: (1) Integrating, analyzing, and mining all sorts of data. In light of the business application scenarios of the “four pronged procuratorial protection,” prosecuting bodies integrate fragmented data according to certain standards and promote the mining and widespread collection of big data related to digital human rights. Centering on the handling of typical cases, prosecuting bodies promote the supervision of similar cases, facilitating the resolution of universal problems in the protection of digital human rights. For example, regarding typical cases of infringement of citizens’ personal information in cyberspace, prosecuting bodies make procuratorial recommendations for apps suspected of illegally leaking personal information and urge administrative organs to launch centralized rectification campaigns to protect citizens’ digital human rights. In another example, regarding the mandatory reporting system for sexual offenses involving minors, where some entities responsible for mandatory reporting do not perform their reporting obligations, leading to the persistence of abuse, prosecuting bodies can integrate and collect data related to sexual offenses involving minors as well as the records on abnormal diagnosis and treatment of relevant medical establishments involving minors, as well as data such as the public security organs’ reports on sexual assaults involving minors and case-filing records, and establish a legal supervision platform for modeling and screening, in order to discover medical institutions’ failure to fulfill duties in cases of sexual assault involving minors and urge systematic correction for the protection of the rights of minors. (2) Promoting the application of a big data-based legal supervision model. Prosecuting bodies employ big data technology architecture to strengthen the standardized control over modeling tools and methods, the standardized management of modeling data resources, and the graphical presentation of the modeling results. They also develop a big data-based legal supervision model, build a data-compatible supervision and application model that effectively serves a real purpose, and adopt a new digital procuratorial model of “case handling, data transfer, and cloud computing”. Through model building, the leads on legal supervision of infringement of digital human rights are discovered, so that unlawful acts can be found and dealt with more effectively and promptly. For example, the “Big Data-based Research and Analysis System for Civil and Commercial Case Execution” developed by the Zhejiang Provincial Procuratorate is effective in discovering problems such as “big data-enabled price discrimination against existing customers” on online platforms and unfair competition infringing on citizens’ privacy and harming consumer rights and interests through big data collision measurement, and then puts forward legal supervision opinions to urge rectification, thereby safeguarding citizens’ digital human rights. (3) Putting forward procuratorial suggestions for further protection of digital human rights in conjunction with judicial case handling. The digital field is an emerging social governance area, and many problems in this field are signs of a general tendency. The occurrence of a case often denotes the potential outbreak of similar problems. Prosecuting bodies fulfil their legal oversight function to discover the crux of problems related to the protection of digital human rights and correct them in a timely manner. At the same time, they put forward countermeasures for closing loopholes and establishing systems in conjunction with case handling, address weaknesses in social governance, and promote the improvement of governance mechanisms and systems for digital space to better protect citizens’ digital human rights. Furthermore, while supervising the handling of cases, prosecuting bodies carry out research and analysis to identify problems in digital human rights protection, put forward sound procuratorial suggestions, participate in the formulation of digital governance rules, and work with relevant government organs to maintain network security, safeguard data rights and interests, control platform monopolies, and realize collaborative governance in order to solve the problem of implicit violations of citizens’ human rights in the digital environment. For example, in cases involving the protection of intellectual property rights in cyberspace, administrative law enforcement agencies are inclined to “substituting fines for criminal punishment”, which goes against the protection of intellectual property rights. Given the functions of administrative supervision, prosecuting bodies in Zhejiang Province aggregated intellectual property cases in cyberspace throughout the Province and discovered problems such as the substitution of fines for criminal punishment and inadequate protection of intellectual property through data collision analysis. They then made suggestions accordingly, urged and supervised the public security organs in carrying out case filing and investigation, and the administrative law enforcement organs in transferring cases in a timely manner, thereby achieving the connection between administrative penalty and criminal justice. This practice has yielded positive results.23
C. Mechanism: Strengthen the protection of digital human rights through the integration of procuratorial work
Unlike other organs, such as adjudication organs, prosecuting bodies have strengths in the coordinated operation of internal departments for the procuratorial performance of duties, linkage with external parties and at different levels, and unified external functions.24 Under the integrated procuratorial work mechanism, prosecuting bodies can achieve synergy to strengthen the procuratorial protection of digital human rights on a larger scale. At the same time, they can also bring widespread digital human rights violations to the attention of higher-level prosecuting bodies, so that major and important cases involving citizens’ digital human rights protection can be handled through the effective allocation of case-handling resources.
Currently, prosecuting bodies are committed to promoting the integration of the “four-pronged procuratorial protection” for better procuratorial protection of digital human rights through the integration mechanism. Internally, prosecuting bodies remove departmental and business obstacles to create more timely, effective and unimpeded information circulation channels, providing a foundation for the technical articulation of different businesses through categorized, IT-based, and labeled data across departments. Externally, given the covert digital human rights violations, lack of leads for legal supervision, and increasingly complicated criminal methods, prosecuting bodies exploit the integrated mechanism to strengthen the linkage between procuratorates in different regions and analyze case clues in depth in handling upstream and downstream crimes in the chain of cybercrime. At the same time, a case of infringement of citizens’ digital human rights often occurs in a place that is not the domicile of the infringer. Prosecuting bodies should use an integrated working mechanism to strengthen the command of the higher-level procuratorate over the subordinate procuratorate, so that the higher-level procuratorate centrally allocates judicial resources to better facilitate litigation and impose effective sanctions on violations.
Promote the use of the integrated procuratorial mechanism for better protection of citizens’ digital human rights and achieve synergy for legal supervision. In practice, there are many typical cases. To this end, the Supreme People’s Procuratorate releases guiding cases and summarizes experience to bring about a demonstration effect. An example is one of the Supreme People’s Procuratorate’s 35th batch of guiding cases: the People’s Procuratorate of Yuhang District, Hangzhou City, Zhejiang Province, initiated a civil public interest lawsuit against a company domiciled in Beijing for infringing on children’s personal information rights and interests. The basic facts of the case are as follows: A company in Beijing developed and operated a well-known short-video application software. The app pushed the sensitive personal information of children, resulting in the infringement of children’s digital human rights, such as personal information. A criminal affairs department of a prosecuting body discovered leads in a public interest litigation case while handling a criminal case involving minors. The public interest litigation department put forward procuratorial suggestions for correction, reflecting the linkage between the criminal department and the public interest litigation department. At the same time, the case was an Internet-related case. The child molestation case occurred in Yuhang District, Hangzhou City, Zhejiang Province, while the app that infringed on children’s rights was registered in Beijing. Considering factors such as investigation and evidence collection, and litigation facilitation, the higher-level procuratorate designated the Yuhang District Procuratorate to file a civil public interest lawsuit with the Hangzhou Internet Court, reflecting the working mechanism for integrated linkage procuratorial work.
D. Effect: The combination of traceability governance and litigation source governance
Compared to public security organs that exercise investigative functions and people’s courts that exercise adjudication functions, prosecuting bodies have more comprehensive legal supervision measures and more flexible and diverse means for judicial protection of human rights and can achieve better effects. Thanks to the special litigation status of prosecuting bodies and the application of specific legal supervision measures, prosecuting bodies can achieve better results in combining traceability governance and litigation source management in the protection of digital human rights.
The so-called traceability governance refers to identifying weaknesses in social governance through the punishment of crimes, and seeking and eliminating risks and hidden dangers that may cause crimes. From the perspective of social governance, crime is a manifestation of shortcomings and weaknesses in social governance. Prosecuting bodies, which are directly involved in crime governance, are the only organs in criminal litigation that perform their duties throughout the entire process, have the capacity to find out shortcomings and weaknesses in social governance through crimes of all descriptions, and are obliged to put forward countermeasures for closing loopholes and addressing the shortcomings and weaknesses in social governance through methods such as the use of procuratorial suggestions in case handling. Judging from the types of legal supervision measures mandated by law, the Organic Law of the People’s Procuratorates sets out the duties and powers of prosecuting bodies in eight areas of legal supervision and stipulates that the people’s procuratorates may take statutory measures such as investigation and verification, lodging procuratorial appeals, and putting forward corrective opinions and procuratorial suggestions in accordance with law in the exercise of legal supervision powers. These powers and measures cover the three litigation processes: criminal, civil, and administrative litigation. These procuratorial suggestions reflect rigid prosecutorial appeals and opinions for correction, as well as soft ones that serve as reminders. It can be said that legal supervision measures taken by prosecuting bodies are specialized in nature (legal supervision is carried out in the form of handling cases) and have comprehensive means. There are both mandatory and non-mandatory measures.25 It is not limited to the pre-litigation process, as it pays more attention to the comprehensive management of the litigation process and the post-litigation link. The comprehensive use of legal supervision measures taken by prosecuting bodies can identify the shortcomings and weaknesses, as well as tendency problems in social governance, thereby effectively improving social governance as well as mechanisms and systems for digital space. By handling cases involving the leakage of citizens’ personal information, prosecuting bodies promote the correction of universal problems in the protection of personal information in cyberspace, which has attracted attention and praise from all sections of society.26
The so-called litigation source governance is to translate the results of case handling into efficient social governance, nip problems in the bud, and reduce the occurrence of litigation conflicts and disputes. Through case handling, prosecuting bodies publicize the rule of law and bring into play the exemplary role of cases so as to realize the litigation source governance, ensure the stable enjoyment and exercise of citizens’ digital human rights, reduce abnormal situations such as resorting to legal action for infringement of rights, and promote stable and orderly economic and social development.
III. Practical Constraints on the Procuratorial Protection of Digital Human Rights
A. Misconception of the concept of procuratorial performance of duties
The rise of digital human rights requires prosecuting bodies to make systematic and forward-looking planning on citizens’ digital human rights in cyberspace. However, regarding the issue of digital human rights protection, prosecuting bodies lack forward-looking planning and generally tend to handle cases on a case-by-case basis, especially employing penal means to crack down on cases involving cybercrimes. In fact, the rise of digital human rights poses greater challenges to the fulfillment of procuratorial duties. Given the universality and importance of digital human rights in cyberspace, prosecuting bodies must extend the focus of human rights protection to cyberspace. Digital technology has shaped dual architecture such as “physical world-digital world”, “real life-virtual life”, and “physical space-electronic space”27. Digital human rights, an emerging human right, are related to people’s expectations for a better life. The judiciary is not only a safety valve for social justice, but also a booster for the protection of rights in an emerging field. The judiciary should not be content with the correction of acts that have been perpetrated, but should pay more attention to early warning for acts. Due to the special nature of the performance of legal supervision duties, prosecuting bodies should be more active and keener than other organs in discovering new problems in new areas and put forward timely forward-looking countermeasures to forestall problems. The rise of digital human rights calls on prosecuting bodies to put more emphasis on the protection of emerging human rights in cyberspace. Prosecuting bodies should more actively embrace digitization, thoroughly perform their duties, strengthen the protection of digital human rights in conjunction with the handling of typical cases, and put forward countermeasures and suggestions for improving systems and mechanisms. However, prosecuting bodies currently do not pay enough attention to digital human rights issues. Procuratorial duties focus on physical space, and procuratorial protection of human rights is biased toward the rights of criminal suspects and defendants in criminal proceedings, with insufficient attention paid to the universal and emerging issue of digital human rights protection in cyberspace. On the whole, higher-level prosecuting bodies lack overall planning for the protection of digital human rights, and lower-level prosecuting bodies fail to put in enough effort to meet the requirements for digital human rights protection, repair damaged social relations through case handling, and strengthen the protection of digital human rights at a deeper level.
B. Inadequate institutional innovation in procuratorial duty performance mechanism
Digital human rights are concealed in nature, and rights infringement is often not easily discovered in a timely manner. As a result, cases involving the protection of digital human rights have many characteristics that set them apart from traditional cases. Prosecuting bodies should pay more attention to institutional innovation while handling such cases. However, when it comes to the issue of cyberspace governance involved in the protection of digital human rights, procuratorial and criminal methods are inadequate, there is a lack of targeted civil, administrative, and public interest litigation measures, and the legal supervision methods as a whole are not innovative. Therefore, cases are generally handled on a “case-by-case” basis, and it is impossible to bring into play the function of addressing the root cause through case handling, promote in-depth cyberspace governance, and improve the cyberspace environment for digital human rights.
The operation of the system for handling cases leaves a lot to be desired in many areas, for example, the examination of evidence issue. Compared to traditional cases, the case handling involved in the protection of digital human rights is more complicated in terms of, inter alia, evidence collection, application, and standard of proof. As far as cybercrime is concerned, evidence is characterized by being more open, liquid, and covert, and prosecuting bodies that rely on the static collection and review of evidence are prone to make the review and use of evidence a mere formality, making it hard to locate problems in a timely and accurate manner. Another example is the issue of jurisdiction across regions. In the era of mobile Internet, the infringement of personal information occurs regardless of geography. A case often involves many provinces, and is mainly characterized by the occurrence of infringement in different places and the wide distribution of infringement victims. In practice, due to a lack of scope of jurisdiction and the inability to determine which prosecuting bodies should initiate public interest litigation, public interest litigation for personal information protection is often stuck in the initial stage. Another example is the issue of litigation claims, which is primarily manifested as the single and controversial nature of claims. In the case of protection of personal information involving citizens’ digital human rights, the Personal Information Protection Law and other laws make principle-based regulations for civil public interest litigation for personal information protection, and a host of procedural difficulties exist in the specific application. Currently, civil public interest litigation on personal information protection is initiated to seek apologies, compensation for losses, stopping infringements, and elimination of dangers. Despite the fact that there are litigation claims requiring the operator to make comparative rectification and optimize business procedures in some cases, the types are generally too simple, and it is difficult to fully cover the compensation for damage to personal information. Moreover, legal provisions are ambiguous regarding the content and scope of compensation for losses in cases of digital human rights infringement, and whether it is possible to sue for punitive damages is highly controversial. In civil public interest litigation cases for infringement of citizens’ personal information, even if the people’s court tends to rule the defendant to pay public interest litigation damages, the eligibility of the victim to receive compensation, the amount, among others, are not stipulated by law, and the approaches taken by prosecuting bodies vary, such as prosecuting bodies submitting the received compensation to the state treasury by proxy and returning it to the individual. On the whole, response to these problems is insufficient theoretically, and practical exploration is also inadequate.
C. The procuratorial protection of digital human rights is unprofessional
Prosecuting bodies are unable to use big data to construct legal supervision models, and there is still a shortage of professionals to promote digital human rights governance. Higher-level prosecuting bodies leverage digital empowerment to broaden the field of legal supervision, with a focus on digital human rights. There is inadequacy in the professional deployment of legal supervision methods as well as specialized training. In new types of cases involving digital human rights in cyberspace, procurators lack professional ability and professionalism in many cases, becoming an objective shortcoming in the procuratorial protection of digital human rights.
It is because of the lack of professional competence that criminal prosecutions mainly focus on handling individual cases, while civil and administrative prosecutions are biased toward passive supervision primarily based on applications. It is difficult to discover similar problems through the handling of individual cases, and it is difficult to broaden the channels for discovering supervision clues through passive supervision. As a consequence, legal supervision is, to a certain extent, restricted by a lack of supervision clues, or issues repeated supervision documents for the same problem, falling short of the best balance between the quantity and quality of supervision. The quality and effectiveness of legal supervision leave a lot to be desired. On the one hand, the application of data in case handling is hampered by poor internal data and a lack of external data, which reduces the validity of data mining and makes the convergence of algorithm learning difficult. On the other hand, there is a lack of design oriented to application scenarios, and data analysis and data mining primarily rely on small data, leading to its greater dependence on data quality. The closed-loop application of data is still nonexistent, and smart digital procuratorial protection is developing slowly. In summary, compared to the increasing complexity of digital human rights protection, specialized procuratorial training and professional quality lag behind. A lack of specialization is a significant “weakness” in the procuratorial protection of digital human rights.
D. Inadequate methods and measures for the procuratorial protection of digital human rights
For the procuratorial protection of digital human rights, the traditional mode of procuratorial supervision is often ineffective in discovering clues. The integrated supervision and application of comprehensive legal supervision methods for procuratorial functions are insufficient. Digital procuratorial reform should carry out internal integration and external linkage to promote the integration of big data resources and targeted procuratorial supervision. However, the concept of procuratorial integration is not applied in the integration of the functions of prosecuting bodies’ internal departments. Prosecuting bodies still employ traditional public prosecution methods for the protection of digital human rights. Little attention is paid to how to integrate methods and measures such as making procuratorial suggestions and submitting procuratorial opinions while handling criminal cases. There is a lack of methods and measures on how to use the handling of a concluded case as a starting point to identify the shortcomings and weaknesses in social governance, leverage legal supervision methods such as investigation and verification, collect evidence, promote innovations in social governance, and realize the combination of litigation source governance and traceability governance.
IV. Future Developments of Procuratorial Protection of Digital Human Rights
A. Embrace new concept of human rights protection around the digital procuratorial service strategy
Digital procuratorial service is a paradigm shift in legal supervision made by prosecuting bodies in order to adapt to the digital age. Digital procuratorial service necessitates embracing a new concept of legal supervision, broadening the field of legal supervision, and innovating methods of legal supervision. Digital procuratorial work should be used as an opportunity to strengthen the protection of digital human rights in the digital era, and prosecuting bodies must abandon the traditional concept of human rights protection, that is, limiting themselves to the protection of the litigation rights of suspects and defendants in criminal proceedings. Instead, prosecuting bodies should fulfil legal supervision function with a broader vision in the digital age, in keeping with the times, and promote the protection of human rights in the procuratorial link in a more comprehensive manner.
As Prof. Ma Changshan said, the profound transformation brought about by the information revolution caused a “surging and amplifying” threat to human rights. People are increasingly becoming digital humans.28 In such circumstances, if prosecuting bodies fail to embrace a new concept of human rights in keeping with the times, they will inevitably be unable to perform in practice. In view of this, prosecuting bodies should be more proactive in applying the people-centered development philosophy, focus on the all-round development of people, and explore new-type judicial protection strategies based on “digital human rights”. Specifically, prosecuting bodies should pay attention to not only the protection of people’s substantive rights, but also the protection of digital human rights involved in virtual cyberspace. Prosecuting bodies should be more acute and accurate in finding the point of convergence between their legal supervision function and the protection of citizens’ digital human rights, be adept at discovering covert problems that infringe on citizens’ digital human rights due to the occurrence of crimes, perform their legal oversight functions to prompt administrative organs to perform their duties in accordance with law, put right the concealed soft unlawful acts by online platforms, and ensure the effective protection of citizens’ digital human rights. In actuality, in the Internet age, citizens see the transition from natural person to “information man”, and big data and algorithms dominate economic and social life in all areas. “Under the guise of technological neutrality often lies the fact that human rights are violated.”29 As the representative of the public interest, prosecuting bodies have more room to perform their duties. For the protection of digital human rights, prosecuting bodies should pay more attention to human rights issues such as people’s freedom and equality, personal dignity, personal privacy, independent choice, education, and employment in the context of big data, and develop the skills to find the clues to the use of big data monopoly technology for concealing human rights violations based on their legal supervision function, and ensure timely correction and prevention.
B. Strengthen the integrated protection of digital human rights through the linkage of “four-pronged procuratorial protection”
1. Criminal prosecution: Prosecuting bodies make great efforts to punish cybercrimes. It is urgent to maintain network security in the digital age. In 2016, China promulgated the Cybersecurity Law and amended the Criminal Law to focus more on fighting cybercrimes. Procuratorial work comes between the public security investigation and court trial in the chain of criminal proceedings to combat cybercrimes. Prosecuting bodies play an intermediary role by exercising functions such as approving arrest, initiating public prosecution, and supervising litigation. They should play a leading role in stepping up efforts to punish cybercrimes in accordance with law. To this end, prosecuting bodies should give play to their advantages of procuratorial intervention in investigation to guide public security organs to collect evidence in a standardized manner. Prosecuting bodies should perform functions such as approving arrests and initiating public prosecution, in order to better punish cybercrimes. In conjunction with the punishment of crimes, greater efforts should be made to investigate and handle the economic interests of criminals and to crack down on the black market related to cybercrime. At the same time, prosecuting bodies should “put equal emphasis on crime-busting and governance”, use the national unified procuratorial business application system to collect cases of cybercrime, conduct systematic analysis, study and judge the trends and causes of cybercrimes, and put forward countermeasures and recommendations for crime prevention, punishment, and traceability governance.
2. Civil prosecution: Prosecuting bodies support prosecution to better protect the digital human rights of vulnerable groups. It is actually difficult for the digitally disadvantaged group to be “informed” due to objective reasons such as their financial status, level of schooling, and learning ability, even if the government makes public the information related to the survival and development of citizens. Vulnerable groups, particularly the “apparent vulnerable groups”, are always in a state of being deprived of information opportunities and being the victim of uneven distribution of information resources. The low-cost advantages of online expression cannot benefit all members of society. Many “digitally disadvantaged groups” are in a substantially unequal position in terms of access to digital information, putting themselves in difficulties in the protection of digital human rights.30 In view of this, prosecuting bodies should make better use of their advantages, such as supporting prosecution to protect the digital human rights of vulnerable groups. The Civil Procedure Law stipulates that prosecuting bodies should support vulnerable groups or individuals who are harmed in filing a suit to the people’s courts. In cases where citizens’ digital human rights such as personal information are infringed, where it is difficult for the victim to obtain evidence, and where an unspecified number of people are involved, prosecuting bodies may leverage its advantages in areas such as investigation and evidence collection, and fixing evidence to support natural persons or organizations/institutions in filing a suit at the people’s courts, thereby helping safeguard citizens’ digital human rights through procuratorial intervention.
3. Administrative prosecution: Prosecuting bodies supervise and urge administrative organs to perform their duties through the fulfilment of procuratorial duties. The protection of digital human rights is a social, collaborative undertaking, and it is impossible for prosecuting bodies to go it alone. Instead, prosecuting bodies perform their legal supervision duties to urge administrative organs and social organizations to perform their duties, building social consensus and synergy for the protection of digital human rights. Digital human rights are exceedingly fragile. Once online information is leaked, it is difficult to restore it. For the protection of digital human rights, it is more important to strengthen supervision before the event. Where prosecuting bodies discover through the performance of their duties that administrative organs have violated the law or are suspected of nonfeasance in the performance of their duties, ren dering the timely and effective protection of citizens’ digital human rights impossible, they should urge the relevant administrative organs to tighten the management and governance of cyberspace in accordance with laws and regulations, urge cyberspace affairs technology departments to strengthen network supervision, increase the protection of key and important technology nodes, such as clients, databases, and web servers, urge relevant administrative organs to perform duties in accordance with law, and promote the protection and administrative regulation of industries related to digital human rights.
4. Public interest litigation prosecution: Prosecuting bodies strengthen the protection of public interest litigation involving collective digital human rights. Due to the nature of universality and diffusion, digital human rights have a public welfare attribute in most circumstances, becoming rights of a public nature that involve specific groups in society. While focusing on the protection of digital human rights, prosecuting bodies should be sensitive to the public interest nature of digital human rights and fulfil the procuratorial function of public interest litigation to protect collective digital human rights. For example, the issue of personal privacy is of a public interest nature in the digital age. The right to personal privacy is both a fundamental right of private law and an important human right. Big data technology has “broken down” the binary structure of public space and private space, rendering the distinction between public and private domains meaningless.31 The situation of “public exposure” becomes increasingly blurred, resulting in an unprecedented pervasive problem for the protection of collective privacy. As a result, when citizens’ privacy is infringed in a scattered and covert manner across regions, it is impossible to achieve all-round, whole-process protection of citizens’ personal information through private interest litigation alone due to the difficulties in collecting and fixing evidence, presenting and cross-examining evidence, and realizing compensation claims in private interest litigation. Procuratorial public interest litigation can fill this gap to a certain extent. Prosecuting bodies should strengthen integrated case-handling mechanisms for procuratorial public interest litigation for the sake of the protection of digital human rights, improve case-handling mechanisms through pre-trial consultation and the introduction of injunctions, and explore the effective integration of private interest litigation and public interest litigation to form a pattern involving “prosecuting bodies + administrative organs + social organizations and individuals” in order to comprehensively and fully protect citizens’ digital human rights such as the right to privacy in cyberspace. In another example, regarding the issue of super online platforms that infringe on citizens’ digital human rights, China’s revised Anti-Monopoly Law includes anti-monopoly civil public interest litigation in the statutory field of procuratorial public interest litigation. In view of this, prosecuting bodies should be more proactive in implementing the Anti-Monopoly Law, focus more on the Internet, public utilities, catering, medicine, and other areas of concern to people’s wellbeing, and actively and steadily perform procuratorial public interest litigation in the anti-monopoly field. By taking advantage of the implementation of the Anti-Monopoly Law, prosecuting bodies will tighten the regulation of the platform economy, promote anti-monopoly and anti-unfair competition for Internet platforms, investigate and carry out public interest litigation against “big data-enabled price discrimination against existing customers” and “either-or” choice for platforms, and prevent data monopoly, algorithm abuse and disorderly expansion of capital.
5. The integration of “four-pronged procuratorial protection”: Prosecuting bodies ensure comprehensive performance of duties to strengthen rights protection. While ensuring the separate roles of four-pronged procuratorial protection, prosecuting bodies should strengthen the mutual reliance of functions in the four areas and ensure the performance of four-pronged procuratorial protection for the comprehensive protection of citizens’ digital human rights. For example, while cracking down on crimes, criminal prosecutors should initiate incidental civil public interest lawsuits for harm to citizens’ digital human rights caused by crimes. In civil litigation, where crime clues are discovered through civil supervision, the supervision procedures for criminal case filing should be initiated in a timely manner. In administrative public interest litigation, where a relevant administrative act is found to be illegal, the supervision of the unlawful administrative act should be combined with public interest litigation, and typical cases should be cited to promote the administrative organ’s full performance of their duties to protect rights in similar cases. To sum up, the integration of the four pronged procuratorial protection will realize the integrated performance of procuratorial duties on the issue of citizens’ digital human rights protection.
C. Focus on key areas to strengthen the integrated protection of citizens’ personal information
In the Internet era, “massive personal and commercial communications and private personal information are always in a state of flow on computer networks”32. On the other hand, information including personal interests, consumption preferences, health status, family members and even workplace, ID number, and home address is being leaked and captured. “Computer science is translating your life into business opportunities for others33. It can be said that personal information occupies a particularly important position in citizens’ digital human rights, and its value in data resources has been appreciating, becoming a key factor in the sustainable development of the digital economy. Going forward, prosecuting bodies should focus on citizens’ personal information in the course of promoting the protection of citizens’ digital human rights.
In the information age, the risk of leaked personal information, an indispensable resource, being sold for profit by management operators or collectors is being highlighted. To strengthen the protection of personal information, prosecuting bodies should take criminal measures to combat and prevent illegal criminal acts that infringe on citizens’ personal information. At the same time, greater efforts should be made to strengthen public interest litigation for the protection of personal information. Through public interest litigation, it is possible to prevent the abuse of facial recogni tion information and check whether there are regulatory loopholes and improper loss of sensitive personal information in areas such as community property management, car sales, and decoration. At the same time, it is necessary to leverage civil and administrative procuratorial power to ensure new comprehensive governance for infringement of citizens’ personal information in the Internet era and remedy the weaknesses in criminal punishment mechanisms. As far as civil prosecution is concerned, the civil prosecution support system can be used to help protect personal information. Specifically, it is necessary to set out the types of cases to be supported for prosecution in the area of personal information protection. Personal information protection cases that are included in the scope of support for prosecution should concern individuals or groups who are in a vulnerable position and at a disadvantage in areas such as investigation and evidence collection so as to ensure the balance of support for prosecution and prevent improper involvement of prosecuting bodies in civil disputes. As far as administrative procuratorial work is concerned, prosecuting bodies should, as legal supervisors, urge administrative organs to perform their duties, tighten market regulation, and discover and prevent cases of infringement of citizens’ personal information in a timely manner. Moreover, they should learn from typical cases, close loopholes, establish systems, and improve administrative regulations to prevent massive leakage of citizens’ personal information.
D. Innovate mechanisms to strengthen the procuratorial protection of digital human rights
Due to the covert and diffusion nature of cases in the field of digital human rights protection, prosecuting bodies should innovate mechanisms and systems to strengthen the protection of digital human rights.
1. Establish an integrated procuratorial case-handling mechanism. Prosecuting bodies carry out internal and external coordination to realize the fulfillment of procuratorial functions and articulation of procedures for the protection of personal information. Specifically, horizontally, within prosecuting bodies, a procuratorial department is designated to handle criminal, civil, administrative, and public interest litigation cases involving citizens’ digital human rights and centrally exercise prosecutorial supervision functions to review the right of arrest, right of prosecution, and the right to civil public interest litigation attached to criminal cases, and other rights in the cases of infringement of citizens’ digital human rights, so as to reduce the transfer of cases among different departments, the transfer of clues, and the problem of disconnected links in investigation and evidence collection. This will save case-handling resources and improve efficiency. Vertically, after community-level procuratorates discover clues in such cases, they may transfer the case to the prosecuting body at a higher level that will review and decide whether to initiate a civil public interest lawsuit. The higher-level prosecuting body may coordinate the forces of procuratorates at all levels within its jurisdiction in order to handle major typical cases involving digital human rights. In cases of widespread infringement of citizens’ digital human rights or harm to the public interest in the area within the jurisdiction, the procuratorate at a higher level may form a case-handling team to handle the relevant cases in a centralized manner, promoting the protection of the public interest.
2. Strengthen mechanisms for connecting administrative penalty and criminal justice for the handling of cases involving digital human rights.34 Administrative organs perform regulatory duties on the illegal collection, use, or sale of citizens’ digital human rights, such as personal information, and mete out administrative punishments for acts that illegally infringe on citizens’ digital human rights, such as personal information. Where administrative organs discover that an illegal act might be suspected of a criminal offense in the course of law enforcement, they should transfer it to a prosecuting body in a timely manner. On the other hand, where administrative organs are negligent in performing their regulatory duties to protect citizens’ digital human rights, prosecuting bodies may carry out administrative public interest litigation and perform supervision through methods such as issuing pre-trial procuratorial recommendations, urging administrative organs to fully perform their duties in accordance with law in a timely manner to safeguard the public interest. Furthermore, if it is necessary to impose an administrative punishment after a non-prosecution decision is made in a criminal case related to the infringement of citizens’ digital human rights, the prosecuting body should transfer it in a timely manner to the administrative organ for a corresponding punishment.
3. Establish a data sharing mechanism. As far as digitalization is concerned, data is a means of production. Data barriers must be removed to allow the interaction and flow of data. If prosecuting bodies face an “information silo” or “data silo”, there will be no foundation for digitization. To strengthen the protection of digital human rights,prosecuting bodies should focus on removing big data obstacles and promoting data integration and sharing. Data integration should start with internal integration. The upstream and downstream linkage should be achieved to realize the horizontal connection of data as well as data analysis and judgment. Internally, prosecuting bodies should maximize the national procuratorial unified operational application system to better perform statistics of, summarize, analyze, and judge case-handling data. Lower-level procuratorates may, under the guidance and support of higher-level procuratorates, promote data sharing. Externally, prosecuting bodies should focus on promoting the establishment of a sound mechanism for sharing, analysis and application of big data across departments and regions and jointly release mechanisms for data analysis and reporting to achieve synergy for co-management and co-governance. Prosecuting bodies can proactively strengthen communication with courts of law, public security organs and relevant administrative law enforcement departments to promote the establishment of a collaborative sharing mechanism, build a big data information platform that is shared with public security organs, courts of law and other law enforcement and judicial organs, eliminate “data silos”, obtain data in all areas, strengthen the integration and sharing of information resources, and realize the exchange and sharing of local government and legal coordination platforms and government affairs data.
Conclusion
“History has proved that major technological changes will lead to paradigm shifts in society and economy”35. The rise of the idea of digital human rights in the context of digitization has expanded the scope of enjoyment of human rights. As national judicial organs and legal supervision organs that proactively perform duties, prosecuting bodies face a change in work paradigms and working methods in the digital era. Prosecuting bodies should attach more importance to and develop emerging fields to strengthen the judicial protection of digital human rights. Centering on the digital procuratorial strategy, prosecuting bodies should more actively perform the procuratorial functions in criminal, civil, administrative, and public interest litigation and strengthen the protection of digital human rights across the board. At the same time, while strengthening the procuratorial protection of digital human rights, it is necessary to study and expand the scope of legal supervision of prosecuting bodies and adopt new supervision measures, mapping out better plans for prosecuting bodies’ legal supervision work in the digital era.
(Translated by NI Weisi)
* ZHANG Jie ( 张杰 ), Distinguished Professor at Law School of Central South University, First-level Researcher at the Law and Policy Research Office of the Supreme People’s Procuratorate, Doctor of Laws. This article is the result of China Law Society’s 2022 ministerial-level legal research project entitled “The Role of Prosecuting Bodies in the Judicial Protection of Human Rights” [Project No. CLS (2022) XZX35].
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2. Ma Changshan, “The Situation of Human Rights Protection in the Digital Age and Its Response,” Seeking Truth 4 (2020): 103.
3. Zhang Wenxian, “Human Rights Jurisprudence in the New Era,” Human Rights 3 (2019): 12.
4. Ma Changshan, “The Situation of Human Rights Protection in the Digital Age and Its Response,” Seeking Truth 4 (2020): 103.
5. Ma Changshan, Law Towards a Digital Society (Beijing: Law Press · China, 2021), 121.
6. Costas Douzinas, Human Rights and Empire, translated by Xin Hengfu (Nanjing: Jiangsu People’s Publishing House, 2010), 206.
7. Gao Yifei, “Why Human Rights in the Digital Age Matter: On Digital Human Rights as a Value System,” Modern Law Science 3 (2022): 153.
8. Gao Yifei, “The Systematic Process of Normative Construction of Digital Human Rights,” Chinese Journal of Law 2 (2023): 39.
9. Yu Haisong, Twenty Lessons on Cybercrime (Beijing: Law Press · China, 2018), 5.
10. John Parker, Total Surveillance: Investigating the Big Brother World of E-Spies, Eavesdroppers and CCTV, translated by Guan Lishen (Beijing: Jincheng Publishing House, 2015), 1.
11. Research shows that over 70% of telecom fraud is related to the leakage of personal information, which has become the “basic material” for telecom fraud crimes. See Security Research Institute of CAICT, Research Report on the Governance of Telecom Internet Fraud under the New Circumstances (2020).
12. Shi Jinghai, “On the Essence of Cyberviolence and the Improvement of the Rules for the Application of Criminal Law,” Science of law 5 (2023): 1.
13. Gao Jingfeng, “The Vista of Reform of Digital and Intelligent Legal Supervision,” Criminal Science 5 (2022): 36-48.
14. Lin Yuxiong, Criminal Procedure Law (I) (Beijing: China Renmin University Press, 2005), 102.
15. Ma Changshan, “The Fourth-Generation Human Rights and Their Protection in the Context of Smart Society,” China Legal Science 5 (2019): 3.
16. Wang Tianyi, The Revolution of Artificial Intelligence: The Past, Present and Future (Beijing: Beijing Shidai Huawen Publishing House, 2017), 184.
17. Ma Changshan, “The Fourth-Generation Human Rights and Their Protection in the Context of Smart Society,” China Legal Science 5 (2019): 5.
18. Zhang Jun, “Work Report of the Supreme People’s Procuratorate — at the First Session of the 14th National People’s Congress on March 7, 2023,” Bulletin of the Supreme People’s Procuratorate 2 (2023): 15.
19. Zhang Jun, “Work Report of the Supreme People’s Procuratorate — at the First Session of the 14th National People’s Congress on March 7, 2023,” Bulletin of the Supreme People’s Procuratorate 2 (2023): 15.
20. Gao Yifei, “Why Human Rights in the Digital Age Matter: On Digital Human Rights as a Value System,” Modern Law Science 3 (2022): 113.
21. Hu Weilie and Ning Zhongping, “Ensure Procuratorial Public Interest Litigation to Promote Legal Protection of Personal Information,” Procuratorate Daily, September 29, 2021.
22. Shi Shaodan and Zhang Zixuan, “Prosecuting Bodies Have Handled 8,361 Public Interest Litigation Cases in the Field of Personal Information Protection since 2019,” Procuratorate Daily, November 10, 2022.
23. Jia Yu, Guidelines for Big Data-based Legal Supervision and Case Handling (Beijing: China Procuratorial Press, 2022), 66.
24. Zhu Xiaoqing and Zhang Zhihui, Procuratorial Science (Beijing: China Procuratorial Press, 2010), 458.
25. Long Zongzhi, Tutorial Book on Procuratorial System (Beijing: China Procuratorial Press, 2006), 87.
26. Example of such cases: In 2020 and 2021, a person surnamed Qin and a person surnamed Li, an airline’s customer service outsourcing staff, took advantage of the airline’s back-end customer service system to illegally obtain and sell over 3,000 pieces of passengers’ travel information, and over 400 pieces of citizens’ personal information such as ID numbers and mobile phone numbers, for a cumulative illegal profit of over 65,000 yuan. After investigation and review, the People’s Procuratorate of Chaoyang District, Beijing, in addition to accusing Qin and Li of infringing on citizens’ personal information, initiated a civil public interest lawsuit attached to the criminal case in accordance with law, demanding them to delete information and data, make a public apology, and pay a compensation in excess of 65,000 yuan. After trial, the court imposed criminal punishment on Qin and Li, and supported all of the procuratorate’s litigation requests. In response to the loopholes in the customer service outsourcing center of the airline in terms of employee management and information confidentiality found in the course of handling the case, the Chaoyang District People’s Procuratorate issued procuratorial recommendations on social governance in a timely manner, urging the enterprise to fulfil the main responsibility and improve the relevant systems and tighten technical prevention and control, ensuring the governance of information protection at source. See Zhang Yu, “Beijing Municipal Prosecuting Bodies Handle 188 Public Interest Litigation Cases in a Year,” Beijing Daily, November 8, 2022.
27. Ma Changshan, “Legal Reform in the Era of Intelligent Internet,” Chinese Journal of Law 4 (2018): 21.
28. Ma Changshan, “The Situation of Human Rights Protection in the Digital Age and Its Response,” Seeking Truth 4 (2020): 103.
29. Ma Changshan, “The Fourth-Generation Human Rights and Their Protection in the Context of Smart Society,” China Legal Science 5 (2019): 5.
30. Song Baozhen, “The Rights of ‘Digitally Vulnerable Groups’ and Their Law-based Protection,” Science of Law 6 (2020).
31. Zheng Ge, “Between Encouraging Innovation and Protecting Human Rights — How Does the Law Respond to the Challenge of Big Data Technological Innovation,” Exploration and Free Views 7 (2016): 79-85.
32. John Parker, Total Surveillance: Investigating the Big Brother World of E-Spies, Eavesdroppers and CCTV, translated by Guan Lishen (Beijing: Jincheng Publishing House, 2015), 14.
33. Piero Scaruffi, The Nature of Intelligence: 64 Big Problems in the Fields of Artificial Intelligence and Robotics, translated by Ren Li et al. (Beijing: Posts and Telecom, 2017), 170.
34. Gao Jingfeng, “The Internal Logic and Effective Application of the Connection of Administrative Penalty and Criminal Justice,” People’s Procuratorial Semimonthly 6 (2023): 27.
35. George Zarkadakis, In Our Own Image: Savior or Destroyer? The History and Future of Artificial Intelligence, translated by Chen Chao (Beijing: CITIC Press, 2017), 296.
