Author: Vladislav V. Zhemerov
Member of ELSA Russia, 3rd year student of North-West branch of the Russian State University of Justice (St. Petersburg).
Digital human rights: near future or not?
Information plays an important role in modern social relations. Its influence on all spheres of society and generates changes in the moral and cultural value orientation of human. The wide dissemination of information is due to the development and improvement of modern digital technologies, which have significantly simplified its search, collection and analysis. We constantly communicate and interact in the information field, not only with each other, but also with state bodies and public structures.
Thus, the Governments of many countries have set a course for digitalization of the economy and other spheres of society, which will bring the existing legal relations to another level of legal communication. Information relations, because of their special importance, inevitably require legal regulation. However, in the General theory of information law, there are still poorly developed or completely undeveloped problems. One of them is the problem of information (digital) rights.
The rapid development of digital technologies in the period from the middle of the XX century to the present day has contributed to the emergence of a special environment where communication between legal entities takes place.[1]
International and national legislation in developed countries could not fully control, let alone protect, the rights and freedoms of participants in digital communication.[2]Â The gradual understanding of the nature and essence of new digital legal relations, as well as the progressive growth in the number of participants, allowed some experts to distinguish digital rights as an independent special type of the fourth generation of human rights, along with somatic rights (cloning, organ transplantation, surrogacy, etc.), which appeared in connection with the discoveries in the field of genetics and biology.[3]
Digital human rights are a special type of subjective rights, expressed in the ability of the subject to have access to information, electronic devices, communication networks and perform various actions with them.    Â
The main properties of digital rights that distinguish them from other types of subjective rights are:
1. The object of these rights is the information submitted in a special form.
2. Digital rights are implemented through the use of digital technologies and artificial intelligence.
3. Digital rights belong only to special subjects (participants in digital communication).
The following types of digital rights are reflected in current international and Russian legal acts:
1. The right to access and use telecommunication networks.
2. The right to digital technologies and artificial intelligence (blockchain technology, Internet of things, cloud services, additional reality, etc.).
3. The right to create, publish and protect digital works.
4. The Right to provide and use digital services (digital mobile communications, etc.).
5. The Right to exchange information, communicate freely, and Express opinions in communication networks.
6. The right to confidentiality and anonymity of digital personal information.
In the modern period at the international and national level has developed a legal and regulatory framework, the object of regulation which is digital human rights. The main international sources are the universal Declaration of human and civil rights and freedoms of the UN General Assembly of 10.12.1948; UN General Assembly Resolution â„– 68/167 of 18 December 2013 «The right to privacy in the digital age»; the Okinawan Charter of the Global information society;[4] the Model Information code for CIS member States (Adopted in St. Petersburg 03.04.2008 by Resolution 30-6 at the 30th plenary session of the Interparliamentary Assembly of CIS Member States)[5] and etc.Â
A critical analysis of the above sources reveals the following problems related to the legal consolidation and implementation of digital rights in the legislation of European countries.
Lack of legal mechanisms for the implementation and protection of existing digital rights
Many institutions, relations and processes that have actually developed in modern Russian society are, in fact, «outside the law». From a legal point of view, they do not exist. For example, financial transactions with cryptocurrency still do not have a legal status, and the cryptocurrency itself is not recognized as a means of payment in many European countries. In this regard, the correction of such «omissions» is assigned to the law enforcement officer, that is, to the judicial authorities. Recently various types of digital human rights have been the subject of disputes in foreign courts.[6] Their analysis led to the conclusion that in some countries there is not enough economic capacity (availability of stable data centers, servers, etc.) to maintain the appropriate Internet technologies in working order. This reason can be caused by many factors: from the lack of electricity in the proper amount to the lack of interest of local authorities in improving the digital infrastructure.
The nature of digital rights and their «intangible nature» make it difficult to be held legally accountable for their violation
Traditional legal liability mechanisms under current international law often do not work when it comes to the need to protect digital rights that have been violated. For example, the presence of international anonymous user associations can damage the digital telecommunications network, which will stop many public and public bodies. A good example is cyberwarfare, in which economically and politically powerful countries participate.[7]Â Some countries openly state that their armed forces have special information operations units in cyberspace. However, because of the scale of the operations, many innocent people from other countries may suffer.
Another prime example is the hackers’ attack on important infrastructure sites. So, in October 2019, hackers launched a virus into the digital systems of three hospitals in Alabama that made it impossible for hospitals to receive their patients. Address the problem, a general convention on cybersecurity should be adopted at the intergovernmental level, defining the main areas of cooperation between countries and determining measures to influence the offending countries.
Complexity of accurate identification of the subject of digital rights (anonymity, confidentiality)
In modern digital communication between subjects, there is a lack of proper control by public authorities in the unscrupulous behaviour of participants in digital communication. The use of special tools that allow you to do things online under the mask of incognito makes it almost impossible to identify a person who uses digital technology. The problem is also acutely felt in criminal law in dealing with the legalisation of proceeds of crime. In this case, the definition of the framework of anonymity allows distinguishing the subjects of legal relations by the criterion of their danger to others, which creates an opportunity to more accurately and in detail control their interaction in the digital space.
The solution of the problem can be facilitated by a set of measures applied by the supervisory public bodies, which will aim to reduce the manifestations of negative behaviours of digital communication subjects. In particular, the granting of a special identification code to the subjects when entering into a contract with a company providing a digital service in the form of an Internet connection. Such a measure will allow a person to be under the mask incognito during communication, but at the same time, creates the ability to quickly establish a violator of digital rights to special regulatory bodies. It is also possible to introduce verification procedures with restrictive measures against entities that refuse to provide their data to an Internet provider. An example of such a restriction is the impossibility of transferring financial assets in the form of money, cryptocurrencies, etc., without the introduction of personal data of the user service. Recently, some countries have declared the possibility of isolating their Internet space from external foreign influences. Such protections are not justified, as it is necessary not to isolate themselves from other participants in the Telecommunications Internet, but to create conditions in which the possibility of negative influence from other actors is not possible or minimized.
It is also important to pay attention to the obligatory improvement of the work of supervisory and supervisory bodies such. Their activities should optimally combine the timely exclusion from public access of illegal manifestations of Internet communication participants and prevention of infringement of the rights and freedoms of citizens.
Today’s realities create a need for quantitative and high-quality training that specialises in combating offences in the digital environment. It is also appropriate to introduce separate disciplines in the system of school, secondary vocational and higher education, which would explain the basic rules of conduct of participants in digital communication, their legal status, responsibility for violations of digital rights of citizens protected by law, etc. These measures will certainly not eradicate the existing problems definitively, but will greatly reduce their severity.
Thus, the digitalization of many spheres of modern society has created a new kind of the fourth generation of human rights – digital rights. Representing an objectively existing reality, this type of human rights has not yet been the subject of a comprehensive scientific study and therefore needs to be studied in detail. It is proposed to create a single definition of digital human rights, which would reflect the most important and distinctive features of the existing rights. For example, define them as a particular kind of subjective rights expressed in the subject’s ability to access information, electronic devices, communication networks and to take different actions with them.
The peculiarities of digital human rights that distinguish them from other types of human rights and freedoms are: a specific object is information presented in a special digital form; digital rights are realised through the use of digital technologies and artificial intelligence and belong only to special actors (participants in digital communication).
Current sources of international law reflect the following types of digital human rights: the right to access and use the telecommunications network; the right to digital technology and artificial intelligence (blockchain technology, Internet of Things, cloud services, additional reality, etc.); The right to create, publish and protect digital works; the right to provide and use digital services (digital mobile, etc.); the right to share information, free communication, and expression in communication networks; the right to privacy and anonymity of digital personal information.
Finally, the difficulty of accurately identifying the subject of digital rights is a key obstacle to the proper functioning of digital relationships. Only quantitative and high-quality training that would specialise in combating offences in the digital environment has helped to reduce the negative impact of unscrupulous participants in digital communication.
Sources:
[1] Umnova I.A. Information law as an industry of the law of the new generation: the answer to technocratization. URL: <https://cyberleninka.ru/article/n/informatsionnoe-pravo-kak-otrasl-prava-novogo-pokoleniya-otvet-na-tehnokratizatsiyu> (accessed data: 22.12.2019).
[2] Khabrieva T.Y., Chernogor N.N. Right in the face of digital reality. URL: <https://cyberleninka.ru/article/n/pravo-v-usloviyah-tsifrovoy-realnosti> (accessed data: 22.12.2019).
[3] Azarov A.Y. Introduction to the theory of human rights. 2003.
[4] Okinawa Charter of the Global Information Society. 2000.
[5] Model Information Code for CIS member states. 2012.
[6] See: Mackie t/a 197 Aerial Photography vs. Askew Ayr Sheriff Court, August 2009. URL: <https://www.casecheck.co.uk/mackie-t-a-197-aerial-photography-v-askew-ayr-sheriff-court-august-2009.html?highlight=WyJkaWdpdGFsIiwicmlnaHRzIl0=> (accessed data: 31.12.2019); State of Tamil Nadu vs. State of Kerala & Anr. Insc. 405 URL: <http://www.asianlii.org/cgi-bin/disp.pl/in/cases/cen/INSC/2014/405.html> (accessed data: 31.12.2019).
[7] Bodmer, Kilger, Carpenter, & Jones. Reverse Deception: Organized Cyber Threat Counter-Exploitation. New York: McGraw-Hill Osborne Media, 2012.
