'Connecting the Dots: Digital Integrity as a Human Right' by Johan Rochel in (2021) 21(2) Human Rights Law Review 358–383 comments
This contribution argues for the recognition of digital integrity as a human right, either as a right on its own or as an interpretative principle for related rights. The right to digital integrity represents a legal norm that crystallizes a certain vision of the individual, as well as the protections that he/she ought to be afforded in a world where digital technologies are omnipresent and pervasive. The main function which digital integrity would fulfil as a human right is a consistency-providing function between the protection of human dignity, the protection of freedom and the protection of privacy. Digital integrity is a concretization of the protection of human dignity in terms of the specific threats that are posed by digital technologies. It serves to promote a substantial definition of what freedom should be about and how this freedom relates to the protection of privacy in informational matters. This contribution illustrates this claim by outlining a republican view of digital integrity and exemplifying its impact on related rights.
The relation between digitalization and human rights is often analysed from the perspective of the threats, which digital technologies represent for human rights. There is an abundance of examples of digital technologies being (mis)used to violate human rights. These violations span from classical issues of digital surveillance and privacy-related threats for users of digital technologies to the dangers linked to online activities and the incapacity of millions of people to even access these technologies. In order to face this diversity in possible threats, I want to argue that we should consider using the idea of ‘digital integrity’ as a human right or, in a less demanding fashion, as an interpretative tool to account for existing human rights. The main objective of this contribution is to lay down a preliminary interpretation of what digital integrity as a human right might look like, and what function it could fulfil in terms of other human rights that are impacted by the omnipresence of digital technologies in our societies. My claim is that, from a human rights perspective, digital integrity represents the legal locus for a crucial debate about the conception of a free individual in the context of digital technologies. Digital integrity helps operationalize the general protection granted to human dignity while trying to pinpoint the specific threats for freedom linked to digital technologies.
There are virtually no academic references to the idea of digital integrity as a human right. Therefore, this reflection on a right to digital integrity contributes in several ways to the current human rights literature. First, it takes an approach to digital technologies that are not exclusively focused on new threats for human rights, but more broadly on the capacity of human rights to apprehend human life in the context of widely used digital technologies. Second, it contributes to a reappraisal of the right to integrity in general (which focuses mainly on physical and mental integrity) and argues for its relevance in addressing digital challenges. The argument will draw upon Article 3 of the European Union (EU) Charter on Fundamental Rights, which specifically refers to the concept of integrity. Third, this contribution exemplifies the potential for a fruitful relation between human rights law and human rights theory or, more broadly speaking, political philosophy.
In addition to being of academic interest, this work on digital integrity takes advantage of political actuality in Switzerland where this idea is discussed at two levels. First, the idea has been proposed for a cantonal constitution (Valais) and chances are good that the article will be included in the new constitution.8 Second, a constitutional initiative asking to change the Swiss constitution is in its final stage of preparation. The text—which first needs to gather 100,000 signatures before it will be put to a vote—asks to complete Article 10 of the Swiss constitution (the right to life and to personal freedom) by adding to its second paragraph: ‘Every person has the right to personal liberty and in particular to physical, mental and digital integrity and to freedom of movement’.
In light of the polysemy of ‘integrity’, it is essential to distinguish this human rights approach on integrity from a technical approach where digital integrity stands for the stability and security of digital systems, and from an intellectual property (IP) perspective where the right to integrity means the protection of an intellectual creation. Similarly, this article does not directly relate to the influential approach proposed by Nissenbaum on ‘contextual integrity’. Nissenbaum’s approach focuses on the norms of information flows (mainly data flows) in specific contexts of social life. Contextual integrity is preserved when these norms meet the expectations linked to a specific context. In this contribution, I use integrity as a human attribute (be it physical, mental or digital), but not as an attribute of information or data flows.
This article is organized as follows. In Section 1, I briefly address the function of the right to integrity in general, taking the EU Charter and the Swiss constitution as main cases. In Section 2, I present three hypotheses on the meaning of digital integrity as a human right. In Section 3, I discuss the consistency-providing function, which a right to digital integrity could fulfil. I exemplify this function by explaining how digital integrity might be interpreted in a republican fashion, following the work of philosopher P. Pettit. I illustrate this view’s impact on the interpretation of other human rights that are related to integrity. To conclude, I address some criticisms of such a view.