The Human Rights Dimension of the Civil Code: On Private Law Protection of Digital Human Rights

Abstract： Although digital human rights have a strong characteristic of public law， they are often closely related to private law in practice. On the one hand， human rights usually need to be transformed into various specific rights to be protected， and their forms of expression and realization during the course will inevitably break through the dualistic division of \"public law/private law\"， thus connecting to the Civil Code that is \"rights-based\". On the other hand， the nature of human rights subjects and that of legal relationship are not decisively consistent. More and more private subjects are endowed \"digital power\" which fall into public domain. On this basis， the Civil Code， as a \"typical rights-based law\"， can essentially be regarded as an expansion and concretization of \"respecting and protecting human rights\" in the Constitution. It not only creates a series of \"digital human rights clauses\" by means of general provisions， separate compilation of personality rights and interpretation of specific civil law clauses， but also imparts substantive connotations to the abstract human rights and guards against the invasion of \"digital power\" by increasing the \"density\" and feasibility of rights.

Theoretically， the legitimacy foundation of the Civil Code protecting digital human rights includes two aspects of the subject and the object. \"Subject justification\" affirms that there is some overlap between human rights subjects and civil subjects， and the subjects of human rights obligations in the digital age have generally expanded to private subjects， so the equal relationships that the Civil Code intends to adjust are constantly changing. As for the object level， human autonomy or human dignity that human rights aim to protect can be embodied as specific rights or interests such as those of body， personality， property and access to judicial remedies， thus falling into the protection scope of the Civil Code. Especially in the context of the gradual decline of \"property law centralism\"， civil law pays more attention to balancing the interests of the strong and the weak， which provides more common ground and possibilities for civil law to protect digital human rights.

Focusing on the legal application in the post-Civil Code era， we should incorporate human rights values into the corresponding legislative norms and optimize the Civil Code protection mechanism for digital human rights from three aspects when faced with emerging digital problems： first， we should constantly refine the specifications of digital personality rights through the open cognition of \"personal freedom\" and the systematic construction of \"personal dignity\". Second， in the process of improving the regulations of data property rights， we should pay attention to personality factors and highlight the autonomy of data processing and the fairness of data confirmation transactions. Third， according to the principle of \"no right， no remedy\"， we should， under the existing framework of the Civil Code， reasonably adjust the rules of tort liability including establishing diversified compensation schemes and bettering preventive protection schemes. As for the former， we can start from three aspects： reflecting on the compensation principle in the damages system， introducing the profit return system and lowering the standard of proof in mental damage compensation； the latter emphasizes that， for the purpose of protecting human rights， the applicable standards of Article 997 of the Civil Code \"the injunction clause to protect personality rights\" should be appropriately loosened.

KEY WORDS： the Civil Code； digital human rights； private power； personality rights； data rights （interests）