Techno-Determinism in Private Law: Influence of Bioprinting on Developing the Concept of Protecting the Right to Digital Image

Abstract

Introduction: the new technological revolution became a trigger in the development of the non-pecuniary benefits concept. In the context of digital transformation, personal privacy protection appears to be a serious problem. A person is found to be in a vulnerable position facing challenges of the new digital reality. This could be illustrated by the example of bioprinting since this technology is connected with digitalization of the human body and creation of its digital three-dimensional model. As a result, a person is becoming dependent on their three-dimensional digital embodiment in implementing their rights to life and health. Evolution in the concept of the right to personal image through recognition of the right to digital image appears as the private law response to the technological challenges. Purpose: to identify and analyze the major problems related to protection of the human right to digital image in bioprinting, as well as to determine an effective model of tort liability for encroachment on the personal digital image associated with the use of bioprinting technologies. Methods: dialectical, formal logical, functional, and other general scientific research methods, as well as special legal methods, including comparative legal and formal legal techniques. Results: the author has studied legal and philosophical problems associated with the bioprinting technology influence on the concept of protecting non-pecuniary benefits and its development; identified a trend associated with the evolution of the human right to digital image; considered the models of tort liability for encroachment on the personal digital image in European law in the comparative legal aspect; formulated prognostic conclusions concerning the model of liability for damage caused by violation of the right to digital image in Russian law. Conclusions: information about a person objectified in a digital three-dimensional model (CAD-file) deserves special protection. The possibility of access and use of such information about a person creates serious risks of causing damage to them. A person’s vulnerable position in bioprinting technologies indicates the need to recognize an absolute non-pecuniary right with a person to their digital image registered in the corresponding digital model (CAD-file). The philosophical and legal concept of human vulnerability serves as a theoretical foundation for the elaboration of solutions aimed at creating an efficient set of tools for protecting the human right to digital image. This concept was manifested in the European law in expanding the possibility of compensation for non-pecuniary damage, its presumption in case of encroachment on non-pecuniary benefits, as well as establishment of the no-fault liability standard. It is necessary to introduce in Russian legislation a special tort establishing the no-fault liability standard for damage caused by encroachment on a personal digital image. Presumption of moral damage in such encroachments, as well as the possibility of recovering exemplary damages from a delinquent, would correspond to the goals of general and special prevention.