The Original Justification of Digital Human Rights

The world today is undergoing a great change unprecedented in a century, and with the deep integration of digital technology represented by the Internet, big data, cloud computing and artificial intelligence with people's lives and social production, people have opened up a new digital mode of existence. Since Professor Zhang Wenxian first proposed the concept of “digital human rights” in June 2019, there has been a lively discussion in the academic community on the conceptual justification, value concept, system positioning and functional dimension of digital human rights. However, some scholars have also questioned or even rejected the concept of digital human rights. It is believed that “digital human rights” do not have the moral foundation of human rights and lack the normative foundation of the constitution. This article argues that human rights refer to the rights that human beings enjoy and should enjoy according to their natural and social attributes. The nature of human beings, including their natural and social attributes, is the root of legitimacy of human rights, i.e. the origin of human rights. The most fundamental motivation for the formation of digital human rights is rooted in the digital nature of human beings. As a result of the extension of the social attributes of human beings, the “digital attributes” of human beings in the digital era are important parts of the theory of human nature in the digital era, which expresses the new patterns of social relations arising from people's existence, lifestyle and production activities in the digital society, and is the root of legitimacy of digital human rights.

I. People in the digital age have new “digital attributes”

Whether in the agricultural era based on land or the industrial era based on factories, people existed in society as “flesh and blood” to carry out various social activities, and the form of existence of “biological human” became the only form of human cognition for thousands of years. In the digital age, the human being is no longer the traditional “biological human”, but an “information human” with “digital attributes”, whose existence has “digital attributes”. Not only has the dramatic change from biological to 'information person' given rise to “digital attributes” in the form of human existence, but also the new “digital attributes” have emerged in terms of human lifestyles and productive activities.

(i) From the real to the virtual society: human beings’ lifestyles take on “digital attributes”. Human lifestyles often depend on the level of technological development and can vary considerably from one social context to another. The agricultural age was a subsistence society of acquaintances, where people's social and material life was confined to the circle of acquaintances, the output of the land and the purchase of goods in the marketplace. In the industrial age, people's activities were no longer limited to the area within their feet, and they moved from a society of acquaintances to a society of strangers. Although material life was greatly enhanced, the power of trains, ships and aeroplanes did not exceed the limits of physical space, and spiritual life was limited to traditional forms such as books, newspapers, periodicals, and plays. In the digital age, the impact of information technology on human lifestyles has changed from the early planar technological influence to a three-dimensional spatial influence, creating a virtual society. The de-boundary, familiarity and centralised nature of the virtual society has given people a strong desire to express themselves, and the use of Internet for transcendent expression and instantaneous communication has greatly accelerated the efficiency of people's work. “More and more ordinary people are willing to produce and live, buy and sell, meet friends, exchange emotions, express themselves and entertain through the Internet” , and digital life is gradually becoming an important part of people's real life.

First of all, in terms of spiritual life, the expression, reception and emotional exchange of digital information has made people's lives rich and varied. The rise of social media, such as wiki and blog, has made the internet another platform for people to interact with each other. Every netizen is not only a reader but also an author. Due to the professionalism nature of early information technology, the main users of the new social media platforms are elite and niche groups. With the introduction of portable and easy-to-use laptops and smartphones, new social apps such as QQ, WeChat, Tik-tok, Bilibili and Weibo became the medium for people's daily entertainment, allowing people to share their own news and interact with others anytime and anywhere in the form of text, photos or videos by using mobile phones.

In the era of web 3.0, people and the Internet show a pattern of interactivity, accuracy and personalization, and spiritual life has been upgraded once again. On the one hand, the development of information technology has blurred the boundary between virtual space and real space. 3D, VR, AR and other virtual reality technologies have made it possible for people to listen to and watch artworks, music and films with a more three-dimensional, intuitive and realistic way. People are truly experiencing what Negroponte predicted, “when reading material from the Patagonian highlands, you will experience the feeling of being there, you may speak directly to the author while enjoying William Bartlett's works”. On the other hand, when faced with a bewildering amount of data and information, intelligent pushing also enables people to access information more precisely, effectively and centrally, and even with the development of technologies such as deep learning, IoE and big data analysis, there are artificial intelligence assistants that can answer at any time and be controlled remotely, such as Xiaomi AI speakers, Tmall Genie, Apple voice assistant (Siri), Xiaodu speaker, which can realize accurate search bydirectly sending instructions to intelligent software without searching.

Secondly, in terms of consumption life, the screening, trading and payment of digital goods have enabled people's material needs to be greatly satisfied. The Report to the 19th CPC National Congress clearly points out that “the main contradiction in our society has been transformed into the contradiction between the people's growing need for a better life and unbalanced and insufficient development”. People's demand for material life is no longer limited to the level of subsistence, but high quality and personalised quality of life has become a new standard of consumption. In the digital age, the Internet is both a medium of connection and a place of exchange. As a medium, people can use cyberspace to communicate and facilitate their consumption life in physical space. For example, on platforms such as Meituan, online car-hailing and 12306, people can communicate online before travelling and arrange for clothing, food, housing and transportation during their trip.

Finally, in terms of political life, digital voting, monitoring and decision-making have made people's political participation direct, extensive and diverse. In the digital era, people's political participation is no longer limited to traditional forms such as face-to-face communication, onsite voting, voting on behalf of others or by mail. Instead, they use the Internet as a medium or a field to express their demands and participate in decision-making through online meetings, voice calls, emails and electronic bulletins. With the construction of digital platforms such as digital government, digital rule of law and smart justice, various electronic documents containing a large amount of public information such as financial budgets, government gazettes and judicial precedents are made public in the digital space, for people to browse and consult at any time. Moreover, a large number of government staff, experts and scholars interpret these documents in depth on digital platforms, so people can grasp policy documents of immediate interest more precisely, which enhances the effectiveness of political participation and facilitates the implementation of their right to supervision. As a result, people's enthusiasm and participation in the digital society have been greatly enhanced.

(2) From the real economy to the digital economy: people's productive activities have “digital attributes”

As technological achievements continue to emerge, people's demand for digital, virtual and intelligent products to improve their quality of life is growing. According to data from the Cyberspace Administration of China (CAC), the value added of the digital economy reached 35.8 trillion yuan in 2019, accounting for 36.2% of GDP and contributing 67.7% to GDP growth. As a new economic form, the digital economy has become an important engine for the rapid development of China's economy, promoting the deep integration of the Internet with traditional real industries and shifting human production activities from land and factories to digital space, and the “digital attributes” of such production activities are reflected in three aspects:

First, the factors of production used by people have “digital attributes”. The Fourth Plenary Session of the 19th CPC Central Committee clearly pointed out that “the mechanism whereby factors of production such as labour, capital, land, knowledge, technology, management and data are evaluated by the market and remuneration is determined according to their contribution should be improved.” “Data” as a new factor of production has been fully recognized, becoming the fifth factor of production after “land, labour, capital and entrepreneurial talent”. As a new factor of production, data has an irreplaceable value. In the production and management process, people can not only collect, store, process and analyse various data elements, summarise statistics and trend predictions on consumer preferences, and formulate next product development plan, but also directly use the data to synthesise various pictures, videos, audios and other data products for distribution and sale as a cultural commodity; they can also directly use the data as an intangible asset in the enterprise's asset valuation, financing and loans as well as investment transfer to realise its economic value.

Secondly, the network platforms operated by people have “digital attributes”. Data elements and network platforms are the two cornerstones of the digital economy, where data elements without network platforms will be useless, and network platforms without data elements will also face the dilemma of “cooking without rice”. With the deep integration of big data and algorithm, the platform has been transformed from a “network marketplace” to a digital organisation with technological support. The two key aspects of promotion and sales have basically been made technological. On the one hand, the network platform, on the basis of a large number of data resources, analyses consumers' interests, purchasing power and consumption habits through big data technology, and adopts online advertising and precise pushing when consumers are online to achieve the purpose of product promotion; on the other hand, traditional merchandising activities are transferred from physical space to virtual space, through online shops in shopping platforms such as Taobao, Tmall and Jingdong to promote and sell. On the other hand, the traditional merchandising activities are transferred from the physical space to the virtual space, and promotion and sales are carried out through online shops in Taobao, Tmall, Jingdong and other shopping platforms, forming an online model consisting of markets and shops, promotion and sales, sellers and consumers in full digitalisation.

Thirdly, labour relations and labour process control have “digital attributes”. The rise of online platforms has had a huge impact on traditional forms of labour and employment. On the one hand, new generations of workers focus on labour freedom and life balance, expecting to give full play to their potential and value, and to escape from the assembly-line work pattern under the hierarchical management system.

On the other hand, in order to reduce the cost of employment and the pressure of establishment, enterprises have also started to use cyberspace to seek to establish non-standard labour relations with workers, such as flexible employment, outsourcing, agency and franchise, etc. Under the “combined efforts” of workers and enterprises, a new type of online labour relations has emerged in which enterprises “de-contracted” and workers de-employerized.

II. The connotation interpretation and attributes orientation of the “digital attributes” of human beings

With regard to the definition and orientation of “digital attributes” of human beings, some scholars, from the perspective of the construction of “biological-digital dual humanity”, believe that the “digital attributes” of human beings refers to “a series of identity data, relationship data, language data and behaviour data formed by people's social activities, which constitute the digital expression of human life. People have acquired digital attributes in addition to their natural biological attributes, making the leap from ‘biological humans’ to ‘information humans’. ” This definition is scientifically sound and reasonable in terms of methodology and content, and is a positive contribution to the understanding of the “digital attributes” of human beings. However, there are two issues that deserve further consideration: firstly, how the classification of human nature into biological and digital attributes differs from the classification of human nature into natural and social attributes, which is accepted by most people in human rights circles, and needs to be explained and justified; secondly, in terms of the interpretation of the connotation of “digital attributes” of human beings, it is proposed that “digital attributes” of human beings are the identity data, relationship data, language data and behaviour data formed by the digitisation of people's social activities, and that “biological human” are transformed into “information human”. The overall bias is towards the static “information human” created by the “digital attributes” of human beings, while interpretation of the connotations of the dynamic “information human” created by the “digital attributes” of human beings is slightly inadequate.

The theory on human nature is an inquiry and reflection on “what is man”, with deep philosophical roots. It is important to note that the theory on human nature in physical space is based on biological human beings, while in the digital era, people are transformed into “information human” and carry out various activities in the digital society. We believe that the “information human” is essentially manipulated by the biological human offline, but the difference is that the “information human” makes the biological human cross physical space, and it can be said that the “information human” is a biological person with “disembodied nature”. Since the theory on human nature is based on the essence of “human being”, it should be widely applicable to both biological human beings and “information human” with “digital attributes”. The theory on human nature does not need to be reconstructed in digital space. However, as the digital society is not based on matter, the traditional theory on human nature is bound to face the expansion of its extension when it enters the digital space, and the natural and social attributes of human nature will also be affected.

As for the interpretation of the connotation of the “digital attributes” of human beings, we tend to take the dynamic “information human” as the object of study. Marx mentioned in his Theses on Feuerbach that “the essence of man is not an abstraction inherent in a single person, but in its reality, it is the sum of all social relations.” The dynamic “information human” is the result of the manipulation of the “information human” by the biological human to carry out social activities in the digital space, touching on the very essence of the theory on human nature. Social relations are not formed by various data and information with identity and personality characteristics, but by the social activities that people carry out using the information identities they possess. Therefore, the “digital attributes” of human beings should be that people carry out social activities such as daily life, culture and entertainment, and production and business in the form of “information human”, and that the construction of social relations, the maintenance of human dignity and the realisation of personal values in this space all depend on information, data and codes. Without data and information, people will not be able to enter the digital society, let alone carry out social activities as subjects in the digital society.

Human nature, as a universal attribute inherent in life, is considered to include natural, social and spiritual attributes, which are expressed as physical, social and psychological needs respectively. In the context of contemporary science, “physics, physiology, brain science and cognitive science have clearly shown that mental activity is entirely material and physiological”, and that the dichotomy between natural attributes which represents physics, and mental attributes which represents psychology, has collapsed. As mentioned earlier, the emergence of “digital attributes” does not change the inherent attributes of human beings, but is an extension of one property or another. Is the “digital attribute” of human being a natural or a social attribute? Through an in-depth analysis of both natural and social attributes, this article argues that the “digital attributes” of human beings do not belong to the evolution of the natural attributes of human beings, but rather to the extension of the social attributes of human beings. Generally speaking, the natural attributes of human beings refer to the physical or biological attributes of human beings. To accept that the “digital attributes” of human beings are an extension of the natural attributes of human beings is to accept that the flesh and blood of human beings have “digital attributes”, i.e. to use technology to transform human beings, and this is something that should be criticised. The wave of information technology has driven the development of society, and the “society” of social attributes in the theory on human nature has been divided into a physical society and a digital society, as a result of the extension of the social attributes of human beings due to the change in the extension of human society in the traditional context.

III. Two types of digital human rights

Digital human rights, as a new type of human rights, are not completely separated from traditional human rights, but have transformed and upgraded traditional human rights, while expanding the content of new human rights and forming their unique theoretical system. The content framework of digital human rights can be constructed in a dichotomous form according to the degree of old and new content of rights.

(i) New digital forms of traditional human rights

Under the impetus of information technology, the digital society has developed from a closed, one-way and static state of connection in the early days to an interactive, precise and personalized intelligent society. While people's daily life has been continuously facilitated, it has also been continuously “eroded” by digitization. On the one hand, traditional human rights, with the right to freedom at their core, have been digitally upgraded. The right to freedom, as an important part of human rights theory, covers many rights such as the right to freedom of expression, the right to privacy, the right to equality, the right to freedom of communication and the right to freedom of religious belief, etc., and has taken on a new form in the digital era. On the other hand, traditional rights, with social rights at their core, have also been “eroded” by digitalisation. In the digital age, people are living digitally and their production and work are becoming more digital in nature. In terms of the right to education, the digital divide has further widened the gap between urban and rural education, and the Matthew Effect in education, created by factors such as quality digital education equipment, environment, teachers and students' ability to use digital technology products, is increasingly evident, with new education models such as Internet+ education and smart education reshaping the connotation of the right to equitable and quality education. Therefore, part of the binary structure of digital human rights should be the traditional human rights in digital form, which are based on the “digital attributes” of human beings.

(ii) Emerging digital rights

When the digital society first emerged, a large number of traditional rights were interpreted in an expansive manner to safeguard the legitimate rights and interests of citizens in the digital space, but the digital society is fundamentally different from the physical society, which inevitably also creates new rights unique to the digital era. The right to Internet access (the right to access the Internet) is the starting point of digital life, and is also an emerging digital right, which has received much attention from all walks of life since the “Jasmine Revolution” in the Middle East in 2010. Currently, the right to Internet access is regarded as a basic human right. The right to data, as the most dazzling emerging right in the digital age, has also diverged into various emerging rights. Like the cradle to grave in physical space, there is also a series of new rights in digital space from emergence to disappearance, where people have the right to claim basic rights such as the centrality of human beings in digital space, access to high quality data, technical support and remedies for infringement, which are called “right to digital existence”. There is also the right of individuals to have search engines remove search results obtained by searching for their names, established by the Court of Justice of the European Union in Google Spain vs AEPD and Mario Costeja Gonzalez in 2017, known as the “right to data oblivion”. In addition, there are various new rights such as the right to data portability, the right to use data, the right to data migration, the right to data resources and the right to algorithmic exclusivity, and as people become more aware of their rights, more digital rights will emerge in the human rights system in the digital space. Therefore, the other part of the binary architecture of digital human rights should be composed of emerging digital rights based on the “digital attributes” of human beings.

(The author is Executive Director of the Institute of Human Rights (National Human Rights Education and Training Base) of Southeast University, Professor and Doctoral Supervisor of the Law School of Southeast University.)