The Civil Law Protection Of Personal Information In The Age Of Big Data

A person from birth,began to produce a wide variety of personal information.Personal information,as to be able to identify the identity of the natural person,is the link of communication between individuals and others,and the society.In the long history of mankind,in addition to normal contacts,personal information has been being collected as the necessary information for the management of State.But at that time due to technical restrictions,there are not many other processing of personal information act,personal information protection has not been of legal attention.With the progress of science and technology,especially with the birth and development of computer and information technology,humans began the "information age".Information industry is developing and Internet users are rapidly growing,there are more and more applications and services of personal information.In the era of large data,due to the existence of mobile terminals,the Internet and the ubiquitous sensors and microprocessors,people have left the "data footprint" all the time,the handling of personal information has long been a large-scale phenomenon,human life change.Personal information processing in large data age is with large-scale,deep,intelligent and systematic features,but also because of such personal information processing may cause damage,which has been far from the former extent with insufficient to be the infestation so inadequate.In the era of Big Data,personal information processing has become a common phenomenon,is beneficial for economic development,social progress and the improvement of human well-being.On the basis of this,the purpose of personal information protection legislation is also changing from the strict protection to the balanced protection and utilization of the relationship,the promotion of the rational use of personal information.In this process,the rational definition of the scope of personal information is particularly important.If the unreasonable definition,or the legal rights and interests of the information cannot be guaranteed,or excessive expansion of personal information protection,are not conducive to the effective use of information resources.The existing definitions of personal information are mainly conjunction theory,privacy theory and identification theory.Identification theory is the mainstream theory.In the era of large data,the definition of personal information should be identification degree theory to replace identification theory,and on this basis to redefine the personal information,outside the scope of personal information,encourage its management and use,limit the scope of personal information protection of civil law to be information meeting the criteria of identification degree of information.Personal information processor in the Big Data era includes not only the official government departments but also the many non-official organizations,especially the network service providers,who have become the main personal information processors of the big data age.In the comparative law,the personal information processing behavior in the big data age has two kinds of concepts: generalized and narrow sense.The general personal information processing includes all behaviors of the collection,processing,utilization and transmission of personal information,the narrow only refers to the personal information processing behavior.In the article,the author takes a broad view of personal information processing behavior.After analyzing the legal elements of personal information processing,the author focuses on discussion of the legitimacy of personal information processing that is consent basis,the author believes that stipulation of consent basis is due to the information asymmetry theory and personal information self-determination theory,and the key solve information asymmetry is to ensure that the information subject's right to know.In the era of Big Data,individuals are lack of the freedom to decide and the ability to decide,so consent theory's basis is not strong.Moreover,agreed theory is lack of real validity,and does not meet the economic considerations,a large number of existence of the exceptions weaken the effectiveness of the basis of consent,and thus in the era of Big Data,consent theory is hard to become a legitimate basis for personal information processing,it's necessary to amend the provisions of the consent basis.The civil law protection of personal information embodies the value of law,the maintenance of human dignity and human emotional needs,but also reflects the consideration of public order.The current personal information protection theory of civil law mainly includes the right to privacy,the right to self-determination of personal information and the theory of property rights.There is a considerable difference between personal information and privacy and things in the connotation and denotation,difficult to be regarded as the same concept.Despite its rationality of personal information right to self-determination,but there are still some shortcomings.In the age of big data,the economic value of personal information highlights the protection of personality interests,at the same time,cannot ignore the protection of property values.This has led to the great dilemma of the value,the dilemma of rights and the dilemma of dualistic rights system in the protection of personal information.After analyzing the personality and property of personal information,the author thinks that the personal information right should be defined as a kind of frame right in view of the uncertainty of the content and the ambiguity of the boundary information.In the choice of civil law protection mode of personal information,because requirements of different classifications' personal information and personal information processing behavior on civil law protection are different,so in the era of Big Data,China's personal information protection should take a hierarchical protection mode,that is,according to different categories of personal information and personal information processing behavior,will be divided into three levels to be the corresponding provisions of the civil law protection.In the choice of legislative model,China's personal information protection legislation should take a compromise approach,that is,the application of the German unified legislative model to develop a unified "personal information law" as the basic law of personal information protection,at the same time,apply US-style self-discipline model of the industry,make a reasonable distinction between personal information processing of official and non-official business branches,strictly control of the personal information processing behavior of official business branches,personal business organs of personal information processing behavior,and non-official organs of personal information processing is mainly to take the rules of industry self-information processing of non-official business branches to encourage the promotion of economic development,social progress and the improvement of human well-being through personal information processing.So that not lose the German tradition of unity in the form of legislation and maintain the US-style industry self-discipline the essence of legislation,both conducive to the protection of personal information,and not hinder the free flow of information.In the era of Big Data,the civil law protection of personal information should follow the principle of minimization,data and quality principles,transparency principles,information subject participation principle and classification protection principle.In the specific system construction,the civil law protection of personal information can be achieved through contract law and tort law.The personal information transaction in the era of Big Data is already very common,so it is necessary to regulate it through contract law.Personal information transaction contract is not a contract of sale,its legal nature should be an information service license contract,so the civil law can protect personal information through the service permit system.Compared to the protection of contract law,tort protection is the main protection way in the protection of personal information.Personal information tort liability can be achieved through non-liability and liability for damages.Throughout the world of countries and regions of the personal information protection legislation,there is a "wide front door,wide back door also" problem.In the age of Big Data,the rational paradigm of personal information protection legislation should be "strict front door,back door is also strict," on the one hand,"close the front door",strictly define the scope of personal information with protection of law,limiting its scope to avoid obstruction of personal information reasonable circulation and use;on the other hand,"close the back door" to have stringent information protection on what have been defined as personal information meeting the recognition ability standards,to reduce the situation of exception applies and clear its requirements,not to process or as little as possible,which is conducive to balance the relationship between rational use of personal information and protection,contribute to the protection of personal and property interests,but also be conducive to economic development,social progress and the realization of personal well-being,should be the trend of future personal information protection legislation.