Research On The Burden Of Proof In Personal Information Infringement

The emergence of internet,big data and algorithm technology has promoted the tremendous development of science,technology and social economy,but also changed the existence of personal information and the scope and way of its use.The digitized information is widely collected,stored,erased,and transmitted through various information technology devices,which leads to serious infringement of personal information.The legal protection of personal information needs the joint efforts of various legal systems of public law and private law to form a multi-channel,all-round system and protection mode.The General Provisions and Personality Rights in the Civil Code provide the basic foundation for the legal protection of personal information of natural persons in civil law,and the effective realization of personal information rights and interests depends on the basic means of civil judicial relief.However,the protection of the rights and interests of personal information subjects in China's civil judicial practice is not optimistic.The most important reason is that the general rules for allocation of burden of proof are not suitable for personal information infringement litigation.The allocation of the burden of proof is the backbone of the civil litigation protection of the right to personal information,and the infringement of personal information has unique characteristics.The allocation of the burden of proof is related to the balance between effective maintenance of the right to personal information and the value of data freedom,which needs to be deeply analyzed and reasonably determined from various aspects such as the the Personal Information Protection Law,the Tort Liability Law,and the Civil Procedure Law.On the basis of a wide range of relevant theories,laws and regulations on the burden of proof of personal information infringement,this paper has drawn on existing research results and foreign experience and applied the methods of logical analysis,example analysis,judicial case analysis,comparative analysis and value analysis to study the issue of the burden of proof of personal information infringement.The main viewpoints and arguments include the following aspects:First,regarding the right to personal information as an independent right is the foundation to allocate the burden of proof in personal information infringement.In its nature,the right to personal information is an independent personality right with both personality and property interests.The right to personal information has its own right structure,right exercise method,and responsibility bearing form,which make it necessary to allocate the burden of proof in personal information infringement based on its own entity right,rather than being attached to the allocation of burden of proof in other tort litigation of personality right or property right.Second,personal information infringement belongs to special infringement.Personal information has the complexity in infringement environment,the diversity in infringement types,and the bias in evidence holding,which should be attributed to the special tort liability.Thus,the special rules for the distribution of burden of proof should be implemented.China's current tort liability applies the general imputation principle of fault liability to personal information infringement,and civil litigation applies the general rule for the allocation of burden of proof to personal information infringement.However,due to the diversity of infringing subjects,concealment of infringing acts and bias of evidence control,personal information subjects are faced with difficulties in proving faults,injurious acts,damages and causality,having a greater risk of losing the lawsuit,which makes it difficult to protect the personality and property interests of personal information rights.Third,the special rules for the allocation of burden of proof of personal information infringement.The rationalization and concretization of the allocation of the burden of proof of personal information infringement depends on the characteristics and needs of the litigation proof of each specific constituent fact,and the balance between the effective maintenance of personal information rights and the reasonable value of data freedom.The constituent elements of personal information infringement are the essential facts targeted by the litigation proof,and also the specific object of allocation of burden of proof in personal information infringement disputes.The constitutive elements of personal information infringement include fault,injurious acts,face of damage and causality.According to the characteristics of the proof in personal information infringement litigation,the reasonable balance between the effective protection of personal information rights and the value of data freedom,the principle of fault imputation of personal information infringement should be amended,and the principle of fault presumption should be implemented,and the following burden of proof should be specifically distributed for each element of facts.However,for personal information collected,used or shared purely for personal and family life,because the amount of information is extremely limited,information processing usually only involves ordinary daily operations,not based on commercial,professional or management purposes.This kind of information processing behavior is not regulated by the Personal Information Protection Law,and the personal information infringement involved does not have the particularity of infringement,so there is no need to adopt special rules for the allocation of burden of proof of personal information infringement.(1)Presumption of fault should be applied to the allocation of burden of proof for element of fault.Since the economic and technical strength of public institutions is not necessarily stronger than that of non-public institutions,both public and non-public subjects should adopt the principle of fault presumption.That is,the information processor shall bear the burden of proving its absence of fault.The specific content to be proved includes whether it complies with the mandatory requirements of laws,regulations and normative documents related to collection,storage and transfer of information protection for personal information,and whether the safety management obligations stipulated by law have been fulfilled.The type of personal information does not affect the difficulty of proof,but mainly affects the extent and scope of civil liability.Therefore,there is no need to distinguish in the principle of imputation and the distribution of burden of proof.(2)The burden of proof in the elements of injurious acts should be mitigated.Due to the development of science and technology,even the negative facts in the act of omission can be proved by direct evidence in some cases.The burden of proof of injurious acts shall still be borne by the subject of personal information.However,when it is difficult for the subject of personal information to prove due to the concealment of information processor's behavior,Fishing Expedition and Obligation to Provide Factual Information should be learnt from the German legal system to mitigate the burden of proof of the personal information subject.(3)The allocation of burden of proof of damage elements shall distinguish between general and special circumstance.In the distribution of burden of proof of damage facts,if the personal information subject can prove both the existence of damage and the specific loss,the personal information subject shall bear the burden of proof for the damage caused by the injurious act.However,due to the fact of personal information infringement is non-timely and non-visualized,the system of discretionary damages can be adopted under special circumstances to mitigate the burden of proof.The personal information subject still bears the burden of proof on the existence of the damage,so that the judge can make a discretion on the damage.(4)The allocation of the burden of proof of causality can be divided into general and special circumstance.In terms of the allocation of the burden of proof of causality,the personal information subject should bear the burden of proof of causality when it is possible to identify the specific infringer.When the sharing of personal information or the joint processing of personal information makes it difficult for the subject of personal information to determine the specific infringer,the system of "joint dangerous act" can be applied by analogy,and the presumption of causality is implemented.It is the personal information processor who bears the burden of proof for the absence of causality.