Articles

• Dror-Shpoliansky, Dafna 1
• Shany, Yuval 2

Abstract

‘The same rights that people have offline must also be protected online’ is used in recent years as a dominant concept in international discourse about human rights in cyberspace. But does this notion of ‘normative equivalency’ between the ‘offline’ and the ‘online’ afford effective protection for human rights in the digital age? This is the question at the heart of this article. We first review the development of human rights in cyberspace as they were conceptualized and articulated in international fora and critically evaluate the normative equivalency paradigm adopted by international bodies for the online application of human rights. We then attempt to describe the contours of a new digital human rights framework, which goes beyond the normative equivalency paradigm. We offer in this connection a typology of three ‘generations’ or modalities in the evolution of digital human rights – the radical reinterpretation of existing rights, the development of new rights and the introduction of new right and duty holders. In particular, we focus on the emergence of new digital human rights, present two prototype rights (the right to Internet access and the right not to be subject to automated decision) and discuss the normative justifications invoked for recognizing these new digital human rights. We propose that such a multilayered framework corresponds better than the normative equivalency paradigm to the unique features and challenges of upholding human rights in cyberspace.

• 1Hebrew University, Jerusalem, Israel
• 2Hersch Lauterpacht Chair in Public International Law; Director of Cyber Law Program, Federmann Cyber Security Research Center, Hebrew University, Jerusalem