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Mo Jihong | On the Constitutional Protection of Digital Rights
2023-08-28 [author] Mo Jihong preview:

[author]Mo Jihong


On the Constitutional Protection of Digital Rights

*Author Mo Jihong

Researcher, Institute of Law, Chinese Academy of Social Sciences

Abstract: Digital rights are a concept of rights that are increasingly concerned by legal circles, and data rights, algorithm rights, and information rights, which have similar meanings to digital rights, have also been widely discussed academically. Whether digital rights can enter the rights system constructed by traditional legal science as a novel concept of rights, especially whether digital rights can enter the vision of constitutional protection in the form of digital human rights, these issues need to be rigorously scientifically proven in jurisprudence. Judging from the current rights form of digital rights, the nature of digital rights is still at the stage of the concept of collective rights, and it is attached to other rights connotations, involving various fields of national governance and social governance such as politics, economy, culture and society. Digital rights have close internal logical connections with data rights, algorithm rights, and information rights, and are institutionally complementary to the legal interests protected by civil rights in traditional jurisprudence and rights in public law. In order to further promote the effective entry of digital rights into the legal system in the future society, especially to obtain strong constitutional protection, it is necessary to continuously improve the government's leadership in the development of digital technology and the ability to ensure the realization of digital human rights. The right attribute of digital rights makes up for the deficiency of rights theory in the traditional legal perspective, and has very important reference significance for the construction of the "fourth generation human rights" theory.

Digital rights is a concept that has not yet reached a consensus formed in the field of law with the rapid development of digital technology in recent years, and its connotation and extension are currently in a state of uncertainty. Around the concept of digital rights, there are also many concepts with the same connotation and extension, similar and similar concepts, such as data rights, algorithm rights, and information rights. These new types of rights formed based on the core concept of "right" in traditional jurisprudence and the resulting new attributes of rights have indeed brought difficulties to the inheritance and development of rights theories of traditional jurisprudence. After the concept of digital rights entered the research vision of constitutional scholars, it became an important issue in the field of basic human rights. Following the logic of digital rights, scholars have deduced "digital human rights". In the process of justifying the legitimacy of "digital human rights", a new generation of human rights concept of "fourth generation human rights" has emerged. Of course, whether digital rights or digital human rights can be used as a new type of rights and whether they have clear attributes of rights, these basic legal issues must be strictly legally demonstrated before they can be promoted at the academic level. This article aims to comprehensively and systematically analyze whether digital rights can enter the constitutional rights system and whether they can become the theoretical growth point of the new generation of human rights based on the legal principles of traditional constitutional law on the basic attributes and basic systems of constitutional rights.

The rights structure and rights form of digital rights

In order for digital rights to become a legally legitimate concept, the issue of the subject of rights must first be resolved. This includes two aspects of legal requirements, that is, who is the owner of a specific digital right, and who undertakes the legal obligation or responsibility to ensure the realization of digital rights to the rights holders who enjoy digital rights. In order to answer the question of the legal subject of digital rights, it is necessary to solve basic issues such as what is the nature of digital rights and what is the minimum level of behavioral capacity protection required for the subject of digital rights to enjoy digital rights. Obviously, this is a question that is difficult to answer accurately in practice. Digital technology is a new technology that has only been popularized in the past two decades, and the digital products produced by digital technology have shown a geometric progression growth trend in the past ten years. Therefore, for the rights holders supported by traditional jurisprudence, there is a problem of "temporal and spatial isolation" from digital products and related interests. During the prevention and control of the new crown epidemic, there have been many elderly people who do not know how to use the "Health Code". Basically meaningless. Therefore, in terms of legal theory, there will be a dilemma that the rights holders of digital rights cannot effectively abide by the rule of law principle of "equal rights holders". Moreover, individuals or companies who have mastered digital technology can easily take advantage of the convenience brought by digital rights to form a monopoly on the use of digital products, resulting in the de facto "privileged" character of digital rights. As a result, the emergence of digital rights has conflicts and conflicts with the value of equal rights advocated in traditional jurisprudence, while the legitimacy of digital rights is in a state of ambiguity due to the uncertainty of the subject of rights.

According to the "three-element" rights structure theory constructed by traditional legal science, the subject of rights includes two characteristics: the subject of rights who enjoy the rights and the subject of obligations to ensure the realization of rights because of the "principle of consistency of rights and obligations". Among them, in the vast majority of cases, the subject who enjoys the rights is also the subject of the obligation to guarantee the realization of the rights. Only in some basic forms of human rights, the state and the government assume the legal absoluteness of the "non-derogable" rights of natural persons. Guarantee obligation. The subject of obligations in digital rights has legal defects such as insufficient behavioral capacity. Specifically, the content of digital rights is often combined with digital products, and everyone can enjoy digital products. However, the eligible subjects who provide effective guarantees for the quality of digital products are not ordinary individuals. existing problems. In the process of the development of digital technology and digital products, only a few enterprises or individuals who have mastered advanced digital technology and digital products can master the characteristics of digital technology and digital products. Both organizations and individual citizens lack the capacity to fulfill their legal obligations to ensure the realization of digital rights. Therefore, in the case of an unbalanced structure of rights subjects, it is difficult to effectively demonstrate the legitimacy of the rights structure of digital rights in terms of jurisprudence. The reason why digital rights have been criticized in jurisprudence is largely due to the monopoly of digital technology and digital products. Designing digital rights institutionally and legally, no matter what the purpose is, only a small number of enterprises or individuals can finally obtain legally reliable benefits through this right. Therefore, there are huge legal obstacles to introducing the rights system into the field of digital technology and digital products.

As far as the rights object in the "three-element" rights structure theory of traditional legal science is concerned, the complexity of the rights object of digital rights is also a realistic factor that hinders the effective survival of digital rights. The right object of digital rights is undoubtedly related to digital. Whether it is digital technology or digital products, there is a characteristic of combining digital with traditional technology and product characteristics. Traditional legal systems have different legal protections and regulations for technology and products. Relatively mature system standards, so whether it is because the combination of digital, technology and products has substantially changed the characteristics of the object of rights, especially whether digital itself is worth governing through the rights system, this is a question that has not been discussed in depth in the legal circle so far . In the field of traditional intellectual property law, invention patents are not applicable to objective public knowledge that benefits mankind and world views and methodologies that reflect the laws of nature, especially as a product of thinking science, a large number of mathematics, physics and chemistry. The theorems and formulas of sexual science are not the object of protection by the rights system. Digital form is purely a phenomenon in the field of human thinking and does not have objectivity. The resulting mathematical science belongs to the common wealth of mankind in the field of traditional law, and belongs to the scope of public knowledge sharing in the system. Numbers are different from the nature of data embodied through digital technology. Data has manual costs such as collection, collation, classification, editing, etc. Therefore, including specific data generated based on digital technology into the scope of rights protection will help to stimulate the production of data products from an institutional perspective, but the numbers behind data products are just human beings. As a product of thinking activities, no one has the right to claim exclusive rights to "decimal" and "binary". If these digital phenomena are included in the scope of rights protection, then human society will not be able to build a common knowledge system, and human beings will lack the basic tools for communication and social interaction. Therefore, it is clear in jurisprudence that data can be the object of rights of digital rights, but numbers themselves cannot be the object of rights of digital rights. But the value gap between numbers and data remains. If the research results of mathematicians cannot be effectively protected, but the data products developed based on the latest research results of mathematicians can be protected by the rights system, then the work of mathematicians will not be effectively respected and protected in the system. It is impossible to calculate the cost invested in the research activities of the country. The current institutional bridge between numbers and data is the protection of algorithm rights. Because the technology and product characteristics in the data often depend on the "algorithm" behind the data, if the "algorithm" producer and the "data" producer are dual subjects, then the "algorithm" producer must be solved in legal terms. Rights-sharing issues for data technologies and products.

In general, there is a gray institutional area of "algorithmic rights protection" between the numbers that lack the protection of the rights system and the data that can be included in the protection of the rights system. The rights structure of digital rights must contain a scientific definition of the rights object of digital rights. Only by building a scientific and reasonable digital rights object system that combines sharing and rights governance can a solid foundation for the rights structure be laid for digital rights.

The legal interest characteristics of digital rights and their right attributes

In the traditional legal theory system, the rights designed by the system and the law and the interests that can be realized through the rights are sometimes confused together, and under the influence of the Western-style "natural rights" discourse system, "legitimate rights" also appeared. The general concept of legal interests such as "legitimate interests".

Numbers are widely used in human social life, which originated from the use of "binary" by modern computer technology. With the birth of applied mathematics, algorithm technology began to widely intervene in people's daily life, forming a variety of digital products that are easy to implement and prioritize efficiency. The highest achievement is reflected in the field of AI robots. Different from the mechanical correspondence methodology of the relationship between "image" and "number" in the early days of human society, digital products are formed through digital technologies such as cryptography, programming, and algorithm design. Due to the diversification of digital technologies, their product characteristics and product structures are becoming increasingly complex. Digital products have more practical product features than traditional products, but because ordinary consumers lack basic knowledge of digital technology, lack the ability to judge the quality of digital products, and cannot directly participate in the production, processing and transformation of digital products, digital products It has completely become the product of "alienation" of product users. Therefore, traditional products presented by digital technology can only be combined with the user's legal interests in terms of use, while the digital technology in digital products is completely out of control for users. As a result, a phenomenon worthy of attention has emerged, that is, users cannot form a complete and effective dominance of rights over the digital products they own. Therefore, even if digital rights are designed in the system, in practice, it is impossible to determine how much real and deterministic legal benefits the holders of digital rights can obtain through digital rights. Producers of digital products and owners of digital technology can put aside the characteristics of specific digital products, and carry out rights-based transformation of various digital products supported by the same digital technology, thereby greatly limiting the legal rights of digital product users. Legal rights that can be independently asserted. If it is said that legal rights and actual interests are confused under the domination of traditional natural rights theory, then under the theory of digital rights, the institutional function of digital rights to protect digital legal interests is showing a trend of weakening day by day, because digital products Users must constantly realize the use value of digital products in order to effectively claim the legal connotation of digital rights.

Therefore, in order for digital rights to officially enter the field of system design, there are many fundamental legal issues that must be clarified. First of all, in the digital products produced by the combination of digital technology and traditional products, it is necessary to clarify what legal benefits digital technology brings to traditional products. Only when the legal benefits are novel can digital products have the necessity of obtaining digital rights protection. Secondly, a qualitative distinction must be made between the legal interests of digital technology in digital products and the legal interests of traditional products. The correlation between digital technologies will make it difficult to define the liability of digital products. Therefore, an effective digital product liability chain must be established, so that when consumers of digital products claim rights and remedies, they can obtain a more accurate list of responsibilities, so as to realize effective rights claims. . If the product liability of digital products is full of uncertainties and there are huge liability risks, it is not appropriate to regulate the use value of digital products by establishing digital rights. Thirdly, will the legal protection of digital technology contained in digital products hinder the technological innovation of digital products? In other words, how to effectively distinguish the novelty of digital technology from the mathematical axioms discovered behind digital technology in terms of system design is relatively difficult. Finally, in digital products created by humans and machines, it is also necessary to clarify how to establish human responsibilities for technical solutions and digital product characteristics independently formed by robots, and how to establish risk returns for potential risks of human-machine co-created products. The above-mentioned characteristics of digital products will inevitably lead to great risks and uncertainties in the legal interests corresponding to digital rights. For users of digital products, how to provide the most effective rights relief in the system and how to restrict digital product developers Stronger behavioral capacity in the digital rights chain, etc., must be considered based on the legal interest theory in traditional law. Failure to consider the characteristics of legal interests corresponding to digital rights may further increase the risk of digital rights.

To accurately grasp the legal interest characteristics of digital rights from a legal point of view, so as to scientifically define the rationality of the existence of digital rights, the most critical thing is to accurately define the attributes of digital rights. In fact, regarding the nature of digital rights as rights in the sense of traditional jurisprudence, even scholars who advocate the legitimacy of digital rights find it difficult to draw accurate conclusions. The crux of the matter is that the legal interests claimed by digital rights are diverse and complex, and digital technology and digital products have a wide range of influences in almost all areas of national governance and social governance, including national sovereignty, national security, politics, economy, culture and society. Therefore, what needs to be protected behind digital rights is not only material interests, but also spiritual interests. Therefore, digital rights are a collective right, and the legal interests it protects have the characteristics of corresponding legal interests such as political rights, economic rights, cultural rights, and social rights. Due to the universal correspondence between numbers themselves and things, digital rights are closely related to various civil rights such as personal rights and property rights in the traditional legal sense, as well as personal freedom and personal dignity in public law. Emerging rights, such as personal information rights and data protection rights, also have commonalities in legal interests. Therefore, digital rights are subordinate in the form of rights, and the legal interests of their claims are almost attached to all forms of rights in traditional jurisprudence. They are supplementary rights that coexist with the traditional rights system, and play a more comprehensive role in the legal interests protected by traditional rights. and system protection. Nevertheless, digital rights still have a certain degree of independence in some fields. For example, the robot products developed by robot AI raise the question of whether the robot itself can be a qualified subject of rights. Since the data expressed through digital technology cannot accurately correspond to the overall information of the characteristics of the existence of things, digital rights cannot establish a one-to-one logical relationship with the privacy rights and personality rights recognized by traditional law. The problem arising from this in theory of infringement may be that the infringement of digital rights does not necessarily lead to the infringement of the information rights embodied in the data, and incomplete information empowerment does not necessarily lead to the violation of the personal interests protected by the information rights in practice. violation of reality. It can be deduced from this that the legal interests protected by the traditional rights system with people as the core of the rights subject are at the top of the "legitimate rights and interests", the "information rights" that reflect personal personality characteristics are at the middle end of the rights system, and the "digital rights" and related Data rights, which are closely related to digital rights, are at the bottom of the rights system. Furthermore, the probative force of the "attribution" responsibility for the infringement of personal personality rights caused by the infringement of digital rights is much lower than that of the tort that actually violates personal personality rights.

After understanding the right attributes of digital rights, we can better analyze the specific institutional path for digital rights as a right to enter the rights system recognized by traditional legal science from a legal perspective. Compared with the various civil rights and rights in public law recognized by traditional jurisprudence, due to the great uncertainty in the legal interests protected by digital rights, the legal protection of digital rights is relatively small, and the law should be lowered. The method of bearing the tort liability and the legal consequences caused by the tort.

System Possibilities of Constitutional Protection of Digital Rights

Since digital rights are attached to various forms of political, economic, cultural and social rights recognized by traditional jurisprudence, digital rights are subordinate rights. It will also be reasonably reflected in the constitution as the fundamental law, and it will gain certain support in terms of rights and capacity.

In a modern society ruled by law, the Constitution is the fundamental law of the country and has the highest legal force. The Constitution stipulates the fundamental system and fundamental tasks of the country, and its institutional function is to effectively regulate the order of state power operation and protect the basic rights of citizens. Lenin once pointed out: "The constitution is a piece of paper on which the rights of the people are written." Therefore, an important institutional function of the constitution in modern times is to serve as a guarantee of civil rights. The rights in the constitution have two basic characteristics. One is that the subject of rights is universal. The subject of fundamental rights stipulated in the constitution of a sovereign state is usually unconditionally applicable to all citizens of a sovereign state. Since the birth of the United Nations Universal Declaration of Human Rights, The constitutions of many countries have absorbed the universal concept of human rights in the Universal Declaration of Human Rights, extending the subject of the basic rights protected in the constitutions of sovereign states from citizens to all natural persons, and even to legal persons with legal fictional personalities; the second is The basic rights in the constitution do not correspond one-to-one with the constitutional obligations directly undertaken by the subject of rights, but only in a holistic manner. The basic rights enjoyed by citizens in accordance with the constitution must be effectively implemented by the sovereign state through the activities of the government and other state organs to implement the constitution and laws. Guarantee, which is the most basic moral responsibility a sovereign state undertakes to its own citizens, is an institutional bridge connecting the fixed legal relationship between a sovereign state and its residents. Therefore, the basic constitutional rights enjoyed by citizens have the ability to resist the public power enjoyed by state organs in accordance with the Constitution. Request fundamental rights remedies of legal process.

Of course, judging from the specific provisions of the constitutional text, the rights matters in the current constitution of our country are not limited to the basic rights of citizens. The general outline of Chapter 1 of my country's "Constitution" also has rights of other nature. These rights do not have the characteristics of the basic rights written in Chapter 2 "Basic Rights and Duties of Citizens", but they can still be obtained by the Supreme Law of the Constitution. effective protection. In the U.S. Constitution, the legality of the existence of "residual rights" outside the text of the Constitution is also confirmed legally. Therefore, in addition to the basic rights of citizens expressly stipulated in the constitutional text, the rights that require the sovereign state to formulate corresponding policies to promote them, and then form the necessary legal protection for certain special legal interests, also have the rights characteristics of constitutional rights.

For digital rights to be included in the ranks of constitutional rights, the key is to prove from the legal theory that it requires state power to undertake the necessary protection responsibility based on the characteristics of constitutional rights. Judging from the current status of the development of digital rights, since it is still a collective right attached to other rights, there are still many legal and practical obstacles to incorporating digital rights as independent constitutional rights into the constitutional rights system. First of all, judging from the current development trend of digital technology, state-owned enterprises and collectively owned enterprises have not obtained complete technological advantages in the field of digital technology. Complete and sufficient technical control has not been obtained. Therefore, it is obviously unrealistic to clearly define the government's absolute guarantee responsibility for digital rights in the constitution. At present, the governments of all countries in the world do not have such digital technology development and control capabilities. Even the United States and other western countries with relatively advanced digital technologies maintain a cautious attitude towards the advanced concept of digital rights such as "digital sovereignty". According to the traditional theory of constitutional rights, the government has absolute capacity to act in protecting constitutional rights. Therefore, the responsibility to protect the realization of constitutional rights is a qualified responsibility for the government, not a superpower responsibility. However, in today's highly developed digital technology, a large number of new digital technologies are in the hands of digital companies. If the concept of "digital sovereignty" is legally recognized, then the resulting sovereign beneficiaries will not be sovereign countries in the traditional sense , but digital enterprises and individuals who have mastered the control over the development of digital technology in a certain field. Therefore, if the traditional constitutional rights system is opened to digital rights indiscriminately, it may cause the problem of weak government protection.

In view of this, in the absence of a reasonable demonstration of the right attributes and rights realization methods of digital rights in jurisprudence, and scientific and effective conclusions have been drawn, digital rights are hastily incorporated into the constitutional rights system driven by rights theory , there are indeed many specific legal issues and institutional difficulties. The theory of rights cannot be used to indiscriminately protect the related interests brought about by digital technology through the generalization of rights.

Justification of the legitimacy of digital human rights and its social significance as a new generation of human rights

For the combination of "digital" and "human rights", Professor Ma Changshan was the first to make an academic attempt in my country's legal circles. In his article "The "Fourth Generation Human Rights" and Its Guarantees in the Context of a Smart Society", he proposed that personal data rights and personal information rights are not just some rights, but should also become a basic human right. "Digital human rights" are the fourth generation of human rights. Human rights. However, whether "digital human rights" can be effectively justified in jurisprudence and become "fourth-generation human rights" is more questioned by the legal community. In his article "On "Digital Human Rights" Does Not Constitute the Fourth Generation of Human Rights", Liu Zhiqiang questioned the legitimacy of "digital human rights" and whether it constituted "the fourth generation of human rights". In this article, Liu Zhiqiang pointed out that the so-called "digital human rights" are not only not the emerging type of human rights upgrading - the fourth-generation human rights, but they are not even suitable as a subordinate concept of human rights. In this regard, this paper conducts a systematic demonstration from three levels. The first is to criticize the view that "digital human rights" constitute emerging human rights. According to the principle of intergenerational division of human rights, even if "digital human rights" can become a human right, it can only be classified into the existing human rights structure. The second is to criticize the ontology of the theory of digital human rights, pointing out that "digital human rights" lack the moral basis of human rights and cannot pass the test of moral human rights. The third is that the plan adopted by the theory of digital human rights to justify "digital human rights" as a basic right is unworkable. "Digital human rights" not only lack the basis of constitutional norms, but also do not meet the "standards of human dignity" and "minimum basic standards".

In response to the above doubts, many scholars in the legal field have also joined the ranks of rebuttals. For example, in the article "No Numbers, No Human Rights", Professor Zhang Wenxian clearly advocated that digital life has become an important part of people's real life. Human life and survival are highly dependent on digital technology. More and more ordinary people use the Internet to produce and live, buy and sell, meet friends, exchange emotions, express themselves, learn and entertain, and open up the digital survival mode of human beings in the information space. . According to the "China Internet Development Report 2018", the number of Internet users in China has reached 802 million, of which 788 million are mobile Internet users, and third-party Internet payments have reached 143 trillion yuan. The Internet, the Internet of Things, instant messaging, social networks, mobile payments, and the sharing economy have become the conditions for people's survival, and humans are increasingly dependent on digital technology. In this context, it is very necessary and very important to regard the mastery and application of digital technology as a "right" and attribute it to "human rights", to extract the concept of "digital human rights" and to popularize the concept of "digital human rights". Urgent, but also logical and logical. In fact, the masses of the people have long felt deeply and gradually realized rationally that "no numbers, no human rights".

Whether "digital human rights" has the significance of human rights, and whether it can become "fourth generation human rights", the key is to correctly understand the basic value attributes of human rights and the characteristics of the development of the three generations of human rights theories. As a basic human rights theory universally recognized by the international community, the connotation of the concept of universal human rights has gone through three stages of development so far: "The first generation of human rights" centered on natural rights such as freedom, life, property and security, and the basic characteristics of these human rights It is its inherent nature, that is to say, it exists before the country and the government, and the government has the obligation and responsibility not to interfere. Therefore, the "first generation of human rights" is a "negative human rights" characterized by the government's non-intervention; The "second generation of human rights" is marked by the German "Weimar Constitution" in 1919. It includes economic, social and cultural rights that rely on the government to take active protection measures. The basic characteristics of these human rights are that they must rely on the government's active protection. It was created on the basis of correcting the value defects of the "first generation of human rights"; "third generation of human rights" is mainly a new type of human rights characterized by rights such as the right to survival and development. The core value of the "third generation of human rights" is It is necessary to eradicate poverty, narrow the gap between rich and poor between developing countries and developed countries, and ensure a relatively fair and reasonable domestic and international environment for the protection of human rights.

Whether it is the first generation of human rights, the second generation of human rights, or the third generation of human rights, the subjects of human rights are independent human individuals with natural biological characteristics that can be distinguished from each other. Even collective human rights are collectively composed of individuals. , human rights exercised collectively. The biggest feature of the three generations of human rights is that the beneficiaries of human rights are natural persons who enjoy basic human rights, and the subject of human rights and the object of human rights, as well as the objects of the interaction between the subject and object, are completely independent. Under the first-generation concept of human rights, human political freedom and basic human rights centered on human dignity and personality rights are legally “benefits” that human rights subjects can obtain independently. Human rights subjects can obtain legal "exclusive qualification" for their own basic human rights. Of course, due to the equality of basic human rights, each individual will be concerned about the status of individual natural persons who have the same qualifications as human rights subjects to enjoy basic human rights based on moral internal pressure, but generally speaking, the independence of basic human rights subjects is a human right The most important institutional function of law. To sum up, the characteristics of the rights of the three generations of human rights are as follows: the first generation of human rights is based on the premise that the government fulfills its duty of absolute non-interference, and the main content is the right to freedom and equality; the second generation of human rights is guaranteed by the government’s active and effective actions. The basic production and living needs of citizens; the third generation of human rights emphasizes the responsibility of each nation-state and sovereign state to protect human rights in the sense of collective human rights.

Regarding the fourth-generation human rights, in addition to Professor Ma Changshan's argument from the perspective of "digital human rights", Professor Xu Xianming once proposed the "right to harmony" as the "fourth-generation human rights", but this academic point of view has not been accepted The recognition of Western human rights scholars with completely different cultural values has not been generally recognized by the domestic legal and human rights academic circles. Because the issue of "harmony" has a clear value tendency, it seems difficult to pursue the value of harmony with the broad scope of universal human rights. spectrum.

In general, whether "digital human rights" can have the right attribute of human rights depends on whether the subject of "digital human rights" is a natural person, and whether the human rights interests in "digital human rights" are the subject of human rights, that is, the survival and development of each natural person. Indispensable personality interests in development. As for whether "digital human rights" can become "fourth-generation human rights", this question must be premised on whether "digital human rights" can enter the human rights system recognized by traditional jurisprudence. From the historical perspective of the continuous development of the connotation of human rights, the characteristics of natural people's personality dependence on digital technology and digital products are different in different historical stages. Although in traditional society, the theory of "image and number" has emerged, the social function of "number" has not yet become the basic condition for the survival of every natural person. However, in the modern digital age, with the development of digital technology, digital products have penetrated into every corner of social life, and digital has become seriously dependent on the necessities of life related to people's basic survival. Under such circumstances, digital products are first attached to traditional necessities of life and become an important object to protect the right to life of individuals. Therefore, not paying attention to the digital characteristics of digital products will inevitably seriously affect the quality of life of individual natural persons. In fact, "digital human rights" already have the basic characteristics of human rights, but the personality interests in "digital human rights" are still presented through traditional forms of human rights. In the future, only when "digital" truly becomes an integral part of the personality of natural persons, For example, the large-scale use of AI products makes digital products an inseparable part of personal personality. Under such circumstances, "digital human rights" can truly enter the human rights protection system. At present, the "human rights" value of "digital" is still in an uncertain stage. Therefore, it should be said that it is not rigorous enough in jurisprudence to regard the expected human rights interests as actual human rights interests. At present, the legal circle advocates the protection of "digital human rights" from the perspective of "fourth generation human rights". social basis for systemic protection.

Develop legal regimes to protect digital rights

The Fourth Plenary Session of the 19th Central Committee of the Communist Party of China made arrangements to "adhere to and improve the socialist administrative system with Chinese characteristics, and build a government governance system with clear responsibilities and administration according to law", and proposed "to establish and improve the use of Internet, big data, artificial intelligence and other technical means. Institutional rules for administrative management” and important tasks such as building a digital government, thus pointing out the reform direction of empowering the government’s governance system and modernization of governance capabilities with the help of digital technology and other scientific and technological means under the background of the information revolution era, and also for citizens, legal persons and society. It provides technical conditions and legal basis for organizations to effectively enjoy digital services provided by the government.

At present, the Chinese government has achieved positive results in exploring digital technology to empower government governance, providing a necessary practical basis for incorporating "digital rights" into the constitutional rights system in the constitution. China is a latecomer country in the process of industrialization and urbanization, but in the era of information and digitalization, it is almost in the same process of development as other developed countries. While digital technology is promoting the government to improve national governance capabilities, the public's requirements for the government to protect citizens' basic rights are also changing day by day. This not only requires the government to use digital technology to enhance the ability to protect citizens' basic rights, especially to strengthen the government's responsibility to protect social, economic, and cultural rights based on government services; more importantly, citizens can directly enjoy the fruits of digital technology development The right of human rights also needs to be gradually affirmed by the constitution, so as to establish it as a new type of basic right.

Digital rights enter the constitution and become a constitutional right or even a basic right, which is very different from the protection and realization of traditional basic rights in the constitution. First of all, the government, as a public management agency, has not naturally become the leader or monopoly of digital technology. On the contrary, the government needs to constantly learn from digital technology research and development units about the ever-changing digital technology. Therefore, the government's legal responsibility in protecting citizens' digital rights is not static, it will continue to be clarified and specified as the government's ability to use digital technology improves. The government's responsibilities in protecting citizens' digital rights should be learning, open, and developmental. Secondly, due to the uneven conditions and abilities of citizens in using digital technology, in order to protect digital rights as a basic right, it is necessary to establish training and education mechanisms that empower citizens to exercise digital rights. It is also necessary for citizens to fulfill their constitutional obligations that are compatible and compatible with the exercise of digital rights, which especially includes the restrictions on the connotation of traditional personal privacy rights required by blockchain technology. The reason why China was able to take the initiative in the prevention and control of the new crown epidemic largely relied on the support of digital technology for epidemic prevention work. In this process, there are not only the effects of the government's improvement of prevention and control capabilities through digital technology, but also the various life conveniences of ordinary people due to the advancement of digital technology. Therefore, carefully summarizing the beneficial practices of the prevention and control of the new crown epidemic can provide reliable experience and reference for the future institutional construction of citizens’ digital rights and incorporating them into the basic rights system stipulated in the Constitution.

In order to facilitate the affirmation of the achievements of digital technology development through the system in a timely manner, and to incorporate digital rights into the constitutional rights system in a timely manner when the government has a relatively complete ability to protect the realization of citizens' digital rights, some necessary legal systems can be established at present. , promote the institutionalization and legalization of digital rights through the combination of legal regulation and rights governance. Judging from the current level of development of digital technology and the level of socialization of digital products, it is necessary to develop legal systems related to digital rights from the following aspects.

The first is to establish a data rights protection system. Data is a product formed in the application of digital technology. Big data is changing people's daily production and lifestyle, making people's grasp and understanding of objective laws clearer. However, the use of big data has also created a series of problems, which involve complex issues such as the cost input of data developers, the integrity protection of databases, the protection of personal information in big data, and the avoidance of data use risks. Among them, the introduction of rights governance methods is A more effective means of establishing the order of data production and use. Therefore, it is necessary to design a protection system for data rights. However, for different stakeholders in the data field, data rights that are generally protected lack legal significance. Data rights must also be categorically legislated. Therefore, in the process of legal protection of digital rights, we must first focus on identifying the legitimate rights and interests of various subjects in the data field and give different degrees of legal protection. This is the basic task of building a digital rights system.

The second is to strengthen the legal protection of citizens' right to information. In the digital age, digital products based on big data have brought great convenience to people's production and life, and the digital rights system is universal for every member of society. But at the same time, excessive digitalization has caused violations of the privacy and personality rights recognized by traditional jurisprudence, especially the information related to individuals based on data reflection. Although it cannot accurately reflect the personality characteristics of individuals, it is used improperly. It will indeed bring a lot of unnecessary interference to the protection of personal rights and interests in the traditional sense. If the problems of personal information leakage and abuse caused by digital technology cannot be solved by means of government regulation, then directly designing personal information rights in the legal system will help to avoid the development of digital technology. cause a de facto violation. Although the current Civil Code and the Personal Information Protection Law have not designed personal information rights as a whole, the existing legal and regulatory measures surrounding the protection of personal information can already constitute a relatively complete protection of personal information. Legal liability system. The next step is to recognize the feasibility of the overall protection of personal information rights in the legal system on the basis of classified protection.

The third is to further clarify the copyright protection of obligees in human-computer co-creation products. With the in-depth development of human-machine co-creation products, the proportion of value creation and value contribution of robots in human-machine co-creation products is increasing. However, starting from the idea of humanism, the design of the intellectual property protection system for human-computer co-creation products should still focus on protecting human rights. The value created by robots is always subsidiary and must serve human purposes. As for how to distribute rights scientifically and rationally among natural persons who are the subject of rights in specific human-computer co-creation products, it needs to be refined through legislation.

The fourth is to actively explore the legal path to protect "algorithmic rights". Algorithms are the core of digital technology, so the digital rights system must take the protection of "algorithmic rights" as the top priority. In practice, the beneficiaries of "algorithm rights" are limited to algorithm designers. To expand the application of digital technology, we can design an algorithm rights system to bring more stakeholders into the main body of algorithm rights, so that Ensure that the legal benefits brought about by digital rights are universal.

The fifth is to clarify the legal principles of attribution of liability for digital rights infringement, and further give play to the leading role of the government in governing the digital economy. On the one hand, the protection of digital rights can be realized by directly setting rights in the traditional legal system; on the other hand, it can prevent the infringement of digital rights by establishing ways to exclude infringement. In the design of the legal system in this field, it is necessary to strengthen the role of the government in digital governance, especially to enhance the government's ability to regulate the digital economy, and establish a cooperative governance model for regulating the digital economy between digital companies and the government.

In short, only by starting with the traditional civil rights system and the public law rights system, the claims of digital rights should be gradually incorporated into the legal category, and the government’s legal obligations in protecting digital rights should be gradually expanded by continuously improving the government’s ability to act in digital economic governance. Only when conditions and opportunities are ripe can digital rights be effectively incorporated into the constitutional rights system. In order for digital rights to truly become qualified rights with self-consistent legal principles, they must take the road of rights protection based on classified protection and macro-guidance. Only when each system design link is based on the correct assessment and reasonable expectations of the legitimacy of digital rights, can digital rights and even digital human rights become the mainstream rights discourse in the future society.

The original article was published in "Journal of East China University of Political Science and Law" Issue 4, 2023, thanks to the WeChat public account "Journal of East China University of Political Science and Law" for authorizing the reprint!