Digital Rights – New Generation of Human Rights?

Abstract

The digitalization substantially affects virtually all social relationships, the fact that requires reassessment of many basic legal concepts. Among them are human rights. It is now increasingly asserted that technological innovations result in the emergence of new digital rights being that fundamentally differ from conventional rights and form a new generation of human rights. The most frequent among such rights are a right to internet access, right to personal data protection and right to be forgotten (right to erasure). To assess the validity of such assertions it is necessary to clarify the grounds for classification of human rights by generations and to determine the correlation between new human rights and the conventional ones.The classification of human rights by their generations offered in 1970 by K. Vasak can be based upon substantive (essential) and chronological criteria. In the latter case the number of new generations of human rights can be whatsoever high while the difference between them is insignificant. If to proceed from the substantive criterion, the rights of the first generation express claims of a human being towards individual freedom and assume the obligation of the State to respect and protect it; rights of the second generation are claims towards social assistance on the part of the State and society to maintain an adequate standard of living; rights of the third generation are a sort of projection of rights of the first and second generations to relations between social communities (international, in proper sense, non сross-border, relations). In such context to substantiate the emergence of a new generation of human rights it is necessary to prove that the related rights forming it have an absolutely different legal nature as compared to the rights of the first and second generations.The right for internet access in international acts, national constitutions and laws as well as in judicial practice is primarily treated as a condition and guarantee of exercise of conventional human rights. Along with this, with due regard to a special significance of Internet for exercise of many human rights, development of democracy and civil society, transparency of state administration the access to it may be recognized as an independent human right. However, the legal nature of such right is quite conventional, it includes claims related both to the first and second generation of human rights. As a right of the first generation it assumes negative obligations of the State not to prohibit and not to restrict an access to Internet (certain Internet resources) and its positive obligations to establish a statutory regulation of access to Internet and provision of protection against illegal restrictions, interalia, on the part of private entities. As a right of the second generation the accessibility of Internet in its material and technical aspects may be regarded, the fact that assumes positive obligations of the State to establish a corresponding infrastructure, to subsidize the provider-supplied services, to organize public access points and to develop educational programs etc. Moreover, the currently applicable international and national regulation of this sphere of relations does not allow asserting that the legal recognition of the right to Internet access has taken place.