Volume 10 - Issue 45
/ September 2021
265
http:// www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2021.45.09.26
How to Cite:
Amelicheva, L., Martyniuk, O., Pyroha, I., Qaracayev, C., & Myroshnychenko, V. (2021). Implementation of constitutional human
rights and social guarantees of security in the context of digitalization. Amazonia Investiga, 10(45), 265-271.
https://doi.org/10.34069/AI/2021.45.09.26
Implementation of constitutional human rights and social guarantees
of security in the context of digitalization
Здійснення конституційних прав людини та соціальні гарантії захищеності в умовах
цифровізації
Received: August 12, 2021 Accepted: September 30, 2021
Written by:
Liliia Amelicheva
103
https://orcid.org/0000-0003-0526-5393
Oleksii Martyniuk
104
https://orcid.org/0000-0001-9160-3525
Ihor Pyroha
105
https://orcid.org/0000-0002-2798-7795
Ceyhun Qaracayev
106
https://orcid.org/0000-0002-5222-9224
Volodymyr Myroshnychenko
107
https://orcid.org/0000-0002-2281-1299
Abstract
Consideration of existing and development of
new strategies for human rights in the context of
globalization is a very significant topic, as
careless management of technological change
can pose a serious threat to human dignity,
autonomy, privacy, and human existence in
general. Purpose: to analyze the level of
constitutional human rights in the context of
digitalization, to consider the positive and
negative impact of technological advances on
private life, to explore ways to protect
fundamental human rights in the context of
globalization. The following methods of
scientific cognition are used: comparison,
historical, systematic approach to research,
method of analysis, and synthesis. As a result of
the conducted research, the scientific idea of the
importance of observance of constitutional
human rights in the conditions of digitalization is
formed. In addition, the study examines the
positive and negative impact of technological
103
Doctor of Law, Associate Professor, Professor of the Department of Civil Law and Procedure, Vasyl Stus Donetsk National
University, Ukraine.
104
Candidate of Law, Associate Professor of the Department of Constitutional, International and Criminal Law Vasyl Stus Donetsk
National University, Ukraine.
105
Doctor of Law, Associate Professor, Professor of the Department of Constitutional Law and Comparative Law, Uzhorod National
University.
106
Doctor of Law, Professor of the Department of Constitutional Law, Baku State University, Judge of the Constitutional Court of the
Republic of Azerbaijan.
107
PhD in Pedagogical Sciences, Associate Professor, Department of Legal Courses, Berdyansk State Pedagogical University,
Berdyansk, Ukraine.
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advances on private life, explore ways to protect
fundamental human rights in the context of
globalization and identifies mechanisms for
using digitization in public administration,
analyzes the legal regulation of informatization
is interpreted and effective ways of solving the
existing problems of ensuring rights and
guarantees are proposed.
Keywords: constitutional human rights,
digitization, privacy, databases.
Introduction
Digitization is not only a source of opportunities;
digitalization creates many ethical and legal risks
and problems. Digital technologies that use large
amounts of personal data pose a threat to
everyone's right to privacy. Digitalization as a
phenomenon of globalization is rapidly
penetrating all spheres of human existence:
economics, public administration, health care,
education, legal sphere, agriculture, culture,
religion, etc. The digital economy creates online
markets, online exchange, and payment through
online banks, the introduction of online services
in public administration reduces bureaucracy and
increases the speed of administrative services,
digitalization of health care allows to detect of
diseases at an early stage and prevent epidemics,
digitalization education provides its accessibility
and personalized approach, in the legal field
digital technologies are able to create robots that
are deprived of discretionary powers, and thus
reduces the number of corrupt practices, the
creation of "smart farms", "smart greenhouses"
increases agricultural productivity, etc.
In September 2015, the historic United Nations
summit adopted the 2030 Agenda for Sustainable
Development. This document reflects 17 goals in
the field of sustainable human development. UN
members recognize that information and digital
technologies are integral tools for achieving
goals. However, the rapid development of digital
technologies not only opens up opportunities but
also creates risks, including ethical ones.
Digitization undoubtedly increases the ability to
communicate with public authorities, promotes
speed, objectivity, and the absence of corruption
in obtaining public services, but the state receives
a large amount of personal information, and the
government has the opportunity to increase
control and management of privacy man.
This jeopardizes the existence of free and fair
elections, reduces freedom of expression,
freedom of information, freedom of thought, and
belief. There are suggestions that similar
phenomena have emerged in the US presidential
election, the Brexit referendum, and polls in
Brazil and Kenya. Surgical treatment, early
detection of diseases, prediction of future
diseases, storage of medical histories in digital
form, which increases the efficiency of storage of
this information, but the risk is a violation of the
confidentiality of health data, disclosure, and
tracking of devices that monitor health. Increased
productivity through digitalization, new sources
of employment and income, new markets and
opportunities, and the risks in this area - are the
full automation of industrial processes, the
demise of certain specialties, reducing
employment.
Most of the fundamental international
instruments on fundamental human and civil
rights were adopted in the last century, and global
digitization has begun today. In this regard, it is
necessary to consider the development and
forecasting of the consequences of digitalization,
the study of ethical and legal issues arising from
the fact that the international community, states,
commercial organizations have a large database
of personal data, it is essential to analyze existing
regulations. legal framework and development of
new strategies in the field of protection of
constitutional human rights in the context of total
digitalization. In the same way, the purpose of
the paper, to analyze the level of constitutional
human rights in the context of digitalization, to
consider the positive and negative impact of
technological advances on private life, to explore
ways to protect fundamental human rights in the
context of globalization. The subject of the study
Amelicheva, L., Martyniuk, O., Pyroha, I., Qaracayev, C., Myroshnychenko, V. / Volume 10 - Issue 45: 265-271/ September, 2021
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is the implementation of constitutional human
rights and social guarantees of protection in the
context of digitalization.
The subject of the study is the implementation of
constitutional human rights and social guarantees
of protection in the context of digitalization.
Theoretical Framework or Literature Review
Some scientific articles and monographs were
analyzed to comprehensively study the topic of
the implementation of constitutional human
rights and social guarantees in the context of
digitalization.
Some works by the following scientists are
devoted to the study of protection of rights in the
development of digital technologies:
Androschuk (2019), Bochkov (2019), Golovko
and Dubenets (2020), Gracheva, and
Cheremisinova (2018), Egorov and Griga (2019),
Kolesnikov (2012), Melnyk (2018),
Lopushyntskyi (2018), Lutsky (2013), Petrenko
and Mashkovskaya (2020), Ryabokon (2018),
and Shakhrai (2020).
The definition of the essence of digitalization is
examined in the articles of Petrenko and
Mashkovskaya (2020), Lopushyntskyi (2018),
Golovko and Dubenets (2020). Thus, the
definition of digitalization is reduced to the use
of digital technologies in most spheres of public
life.
Androschuk (2019) interpreted the case on the
right to forgetting, which was won by Google,
and drew attention to the peculiarities of the
protection of rights on the Internet in the digital
age.
Besides, Bochkov (2019) drew attention to the
transformation of state institutions in the age of
digital reality. Further, Gracheva and
Cheremisinova (2018) paid more attention to the
constitutional provision of digital rights.
Moreover, Egorov and Griqa (2019) conducted a
comparative analysis of the availability of
digitalization indicators in Ukraine and other EU
Eastern Partnership countries.
Ryabokon (2018) analyzed in detail the state
information policy of the formation of the
information society, paying attention to foreign
experience. In particular, the author notes that the
modern state is a catalyst for change in the
interests of society and man. It is the state that
fights against monopoly and controls the
concentration of property in the media and
telecommunications business; legally and
technologically ensures the rights to access
information and information resources for
citizens, as well as the protection of personal
data; guarantees freedom of speech regardless of
the environment of information dissemination;
implements measures for the development of
multinational culture, opposes the information
and cultural expansion of other countries,
conducts information policy; carries out
purposeful use of information and
telecommunication technologies for expansion
of dialogue of the power and citizens. One of the
conditions for the effective implementation by
the state of these areas of state information policy
is the development and adoption of relevant
strategic documents. The Ministry of
Information Policy, established in 2015, was
tasked with developing the Information Policy
Strategy of Ukraine and the Concept of
Information Security of Ukraine, but these tasks
have not yet been implemented. In addition, the
author noted that the priority tasks of the state in
the field of information policy are to ensure the
constitutional right to receive, use, disseminate
and store information, to freely express their
views based on the most effective application for
scientific, technical, cultural, social development
of those opportunities that provide the latest
means of information exchange, production, and
promotion at the global level of their information
product. The development of the information
society in Ukraine is possible only based on a
comprehensive approach that contains a strategic
vision of informatization of society and is
coordinated by the existing socio-economic,
political, and cultural priorities of the state and
international practice.
The fraudster, in his work "Digital Constitution",
investigated the fate of the main rights and
freedoms of the individual in the total
information society (Shakhrai, 2020).
The study of international experience in the
implementation of information technology in the
legal system became possible through the
analysis of the digitalization process in countries
such as Great Britain, France, Germany, Italy,
Georgia, Greece, and Estonia.
The following works are devoted to this area:
"State policy in the field of information society
development in France: prospects for Ukraine"
by Melnyk (2018), "Selected decisions of the
Federal Constitutional Court of Germany" by
Schwabe, and Geisler.
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In addition, normative documents regulating
digital rights and mechanisms of public
administration with the use of information
technologies were used in this direction
(Ukrinform, 2021; European Court of Human
Rights, 2012; Committee of Ministers, 2005;
Human Rights Council, 2018; The EDRi papers,
2021). In particular, the United Nations E-
Government Survey 2018 (UN study on the level
of e-government development in different
countries), the Constitution of Greece, Georgia,
Germany, France, Italy (consolidation of digital
rights), etc.
Therefore, we can conclude that the issue of
digitalization in the context of human rights has
been studied by many scholars, but the
implementation of constitutional human rights
and social guarantees in the context of
digitalization has not been studied
comprehensively, so there is a need to analyze
this topic in more detail.
Methodology
During the study of the implementation of
constitutional human rights and social guarantees
of security in the context of digitalization, a
number of methods were used: comparison,
historical, systematic approach to research,
method of analysis, and synthesis.
Thus, the historical method has become a way to
reveal a retrospective of the development of
digital technologies in Ukraine and the world.
Using the historical method, it is investigated in
which historical periods the main acts regulating
the provision of individual rights were
established, including in the context of
digitalization.
The comparative method made it possible to
compare foreign experience in the
implementation of digitalization and highlight its
positive features, which are considered
appropriate to use in building a domestic system
of digital services and protection of rights.
The method of analysis was useful for the study
of digitalization, gradually dividing the study of
the theoretical part of the object and the practical,
which consists in the analysis of international and
Ukrainian experience in the use of information
technology. Analytical assessment of the
processes of implementation of information
technologies makes it possible to identify
patterns, according to which it becomes possible
to identify specific features of digitalization as a
mechanism for effective public administration.
In the future, it was logical to use the method of
synthesis, i.e. the location of the analyzed parts
alone, grouping by the similarity of features, or
building a hierarchical system. Analysis and
synthesis act as fruitful methods of cognition
only when applied simultaneously. The method
of synthesis allowed to gather the studied
theoretical and practical aspects into a single
whole in order to find the most effective
mechanisms for the introduction of
digitalization.
Using the system method, the object of study is
considered as a set of interconnected elements
that have a common goal. It is crucial that the
properties of the object as a whole system are
determined not only and not so much by
summing up the qualities of its elements, but by
the properties of its structure, special system-
forming, integrative connections of the object.
Results and Discussion
Human and civil rights and freedoms are the
most important social values and the main object
of constitutional and legal relations. Their
implementation, use, and compliance depend on
the level of protection and security. That is why
the major element of the constitutional-legal
status of the person and the citizen is guarantees
of these rights and freedoms.
Digital personal rights, digital self-
determination, databases, the right to the Internet,
digital services, etc. become an integral part of
human life. These circumstances are a
prerequisite for the formation of a separate legal
institution the Institute of Digital Human
Rights.
Digital rights are a relatively new legal category,
and therefore their list, definition, and the need
for separation are controversial in the scientific
legal environment. Thus, there is an opinion that
the concept of "digital rights" should not be
considered as a separate group of human rights,
but as a conditional category that covers the
implementation and guarantees of fundamental
human rights on the Internet, including freedom
of expression and online privacy. Given the huge
role that the Internet plays in modern life, the
separation of this category helps to better
systematize and study the needs of human rights
in the online environment, some guarantees of
which are now scattered in the recommendations,
resolutions, and other acts of international
institutions. Other researchers consider digital
rights to be derived from informational rights,
but not identical, and emphasize the need to
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separate them into a separate group. Digital
rights are also understood as the rights of citizens
to access, use, create and publish digital works,
the right to free access to the Internet (other
communication networks) using computers and
other electronic devices (Bochkov, 2019).
Despite the controversial nature of the problem,
it should be recognized that the development of
digital technologies does affect the development
of constitutional human rights and their further
legal regulation and protection.
The UN has repeatedly considered the issue of
digital rights. In particular, it was declared that
the right to the Internet is an inalienable human
right that must be ensured at all levels, and
emphasis was placed on its crucial role in the
development of society, and the rights that a
person has in the offline environment are
protected in the online environment. The UN
calls on all states to respect and protect the right
to privacy, including in the context of digital
communication.
However, despite loud calls and proposals for a
settlement, the public and legislative
consciousness are currently undergoing a process
of a qualitatively renewed understanding of the
content of human rights, which necessitates the
development of a system of constitutional
guarantees and mechanisms for human rights
protection in the context of digital
transformation.
Analysis of the regulatory experience of foreign
countries allows us to identify two ways of
domestic regulation of digital rights (Table 1):
Table 1.
The ways of domestic regulation of digital rights. Own authorship.
Path 1
Path 2
The constitutionalization of digital rights, which
changes the text of the constitution in order to
s at the highest constitutional regulate digital right
level
the digitization of constitutional rights, in which
the rights enshrined in the constitution are
updated or regulated based on decisions of
law of the -constitutional jurisdiction, the case
s, or in relevant European Court of Human Right
legislation
The first way is appropriate for those countries
that develop and adopt constitutions in the
twentieth century, but there are examples of
changes to already adopted constitutions. For
example, the Constitution of Greece in 2001 was
supplemented by Art. 5A, where Part 2 enshrines
the right of all persons to participate in the
information society and to facilitate access to
information transmitted in electronic form.
Digital rights are formulated in more detail in the
Constitution of Georgia (Law No. 2071, 1995),
which is 2018, in the process of constitutional
reform, made appropriate changes and defined
the right of everyone to access and use the
Internet (paragraph 4 of Article 17).
The second way is relevant for countries, that
recognize the need for normative consolidation
and a renewed understanding of fundamental
constitutional rights in the digital age but are not
yet ready to change the Constitution.
Quite often, they use either body of constitutional
jurisdiction, which, without changing the "body
of the constitution", interpret certain
constitutional norms in the light of digital reality,
or adopt certain laws governing digital rights.
An example of such a transformation is
Germany, where the regulation of digital rights
(for information self-determination, for ensuring
the integrity and confidentiality of information
technology systems (IT-law), for the secrecy of
correspondence, mail, and telecommunications,
for the inviolability of housing) mainly has a so-
called “judicial origin" because in the absence of
normative enshrinement in the relevant
legislation is governed by decisions of the
Federal Constitutional Court of Germany. That
is, normalization occurs as needed in cases of
legal conflict. However, the essence of these
rights does not change but is only interpreted
through the prism of digital transformation. In
this context, the experience of France is
impressive, which, carrying out a gradual
interpretation of digital rights by a body of
constitutional jurisdiction, realized the need to
adopt a codified legal act.
The digital transformation presupposes the need
to receive appropriate constitutional standards in
ensuring and realizing human rights, without
which the further development of
constitutionalism in the conditions of digital
transformation is impossible. One of them is the
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need for regulatory definition and regulation of
the right to access the Internet.
Ukraine is moving towards defining the right to
access the Internet at the level of relevant
legislation, which, on the one hand, allows to
comply with all ratified conventions and
recommendations of international organizations,
and on the other not to amend the Constitution.
In the process of digital transformation, the list of
constitutional human rights is gradually
expanding and receives a qualitative update of
the semantic interpretation.
Increasingly, we have to meet the right to data
portability and the right to be forgotten. This is
the so-called right of the data subject to object to
the further processing of the data and the
obligation of the data controller to delete the
information immediately after it ceases to be
necessary for processing.
For example, the right to forgetting is treated as
a human right that allows a person to demand,
under certain conditions, the removal of his or
her data from public access through search
engines i.e. links to data that he or she believes
may harm him or her. This applies to outdated,
inappropriate, incomplete, inaccurate, or
redundant data or information, the legal grounds
for storage of which have disappeared over time.
Moreover, the right to be forgotten is a dispute
between Mario Costeja Gonzalez's complaint
against Google Inc and La Vanguardia Ediciones
SL (Judgment No. C‑131/12, 2014), which was
heard by the EU's highest court, the European
Court of Justice, which ruled on 13 May 2014,
that European law gives EU citizens the right to
apply to any search engine with a request to
remove links relating to personal information
about the applicant. Inadequate and outdated
data, as well as those that are excessive in relation
to the purposes for which they were posted on the
Internet, are subject to deletion. This decision has
set a precedent that provides a basis for revising
the list of constitutional human rights and their
expansion and provides legal instruments for the
protection of human rights and freedoms, as well
as a real guarantee of protection of such rights.
But even though the rights are enshrined in the
laws of many states, there is a need to regulate
legislative guarantees. This circumstance
indicates the need to ensure and implement
digital human rights. It is necessary to develop a
concept of digital duties and responsibilities for
the violation of these rights.
Thus, the exercise of constitutional human rights
and social guarantees of protection in the context
of digitalization require a comprehensive
approach both by the state and by the consumer
of such rights and by society as a whole.
Conclusions
As a result of the study of the implementation of
constitutional human rights and social guarantees
of protection in the context of digitalization, the
following was established.
1. In the process of legal digitalization an
essential role is played by the normative
consolidation of digital rights, which
allows regulating the relations that arise in
the process of human interaction during
the use of information technology and use
effective mechanisms to protect such
rights.
2. Analysis of international experience
confirms that depending on the level of
interest of a particular country in its
integration into the world communication
system depends on the direction of digital
policy of the state and ways to reform the
state in this context.
3. Digital transformation presupposes the
need to receive appropriate constitutional
standards in the field of ensuring and
realizing human rights, without which the
further development of constitutionalism
in the conditions of digital transformation
is impossible. One of them is the need to
normatively define and regulate the right
to access the Internet.
Thus, based on the analysis of international
experience in the field of digitalization of law, we
can conclude that there is a gradual "blurring of
information borders" and improving the system
of settlement of relations arising from the use of
digital rights (France, Italy, Germany, Greece,
Georgia). For effective public administration,
digital technologies are an effective tool that
requires applied research and development.
Regarding further scientific research, it is
essential to examine the draft laws and the work
of the committees of the Verkhovna Rada of
Ukraine on the consolidation of digital rights in
legislation.
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