On The Improvement Of International Industry Self-Regulation Rules For Anti-Doping Personal Information Processing

The international community has achieved a consensus on the construction of a unified anti-doping system.The international anti-doping system,taking anti-doping testing as the basis,has developed various mechanisms,such as Whereabouts Rule,Athlete Biological Passport,Therapeutic Use Exemption and anti-doping investigations,which are gradually being improved.There is a natural relationship between anti-doping activities and the personal information of athletes and other subjects.The core content of anti-doping activities is personal information processing,and most of them involve athletes’ sensitive personal information.The processing of anti-doping personal information falls outside the scope of the "sporting exemption" with regard to the application of law,and thus the relevant industry self-regulation rules shall operate under the existing legal norms.As for the anti-doping personal information processing,the legal norms as hard law and the international industry self-regulation rules as soft law have their own limitations and irreplaceability,forming an interactive relationship.The three-generation international personal data protection standards formed in the development of theory and practice are an important legal framework for the World Anti-Doping Agency to formulate the international industry self-regulation rules for anti-doping personal information processing through "hard law softening".Analyzed with the legal framework of personal data protection,it can be concluded that the international industry self-regulation rules have established an autonomous framework for anti-doping personal information processing by endowing personal information subjects with rights and imposing obligations on processors,which is guaranteed by accountability and error correction mechanisms.This autonomous framework embodies the core principles established by the international personal data protection standards,and absorbs the high-level requirements of the latest generation of international standards,the European Union’s General Data Protection Regulation,in many aspects.Attaching importance to rules is not only the cornerstone of sports,but also the fundamental requirement to ensure the development of the industry.Industry self-regulation rules and legal norms are both social norms in writing,with the same purpose to coordinate the interests within the scope of application.Therefore,the legal research method of balancing of the interests can be used to analyze the anti-doping personal information processing.Only on this basis can the problems of the international industry self-regulation rules for anti-doping personal information processing be clarified and improved.Since the protection of personal information implies both human dignity and freedom of information,there are not only the interests of personal information subjects,but also the interests of personal information processors and public interests in anti-doping personal information processing.As for personal information,athletes enjoy both personality interests and property interests.However,due to the objective differences in the legislative status and quality of personal data protection laws in various countries,there are fundamental differences among different individuals in the athlete group when they realize their interests in personal information in accordance with legal norms.The interests enjoyed by anti-doping organizations as processors arise from the demand for anti-doping,on the premise of legitimate use,and from their own creative work.During the processing of anti-doping personal information,the public interest is embodied as the anti-doping public interest,which has not only been recognized in legal practice,but can also be proved academically.The conflicts of interests are thus manifested as the conflict of interests between the personal information subjects and processors,as well as the conflict between the interests of personal information subjects and the public interest.As the anti-doping organizations are the core subjects to fulfill the task of anti-doping public interest,the two pairs of conflicts have a high degree of overlap.When conflicts of interests occur,the interests of personal information subjects should be regarded as the fundamental interests,while the anti-doping public interest constructs the legitimacy of the restrictions on the rights of personal information subjects,but subject to the principle of proportionality.The analysis in conjunction with relevant legal norms reveals that the international industry self-regulation rules have rationality problems in the three aspects of language and logic,rule loopholes as well as rights protection,and problems of legality in terms of legal basis in the interaction with legal norms.The problems of legality are manifested in the lack of stability of the legal basis for processing,and the restriction on the rights of personal information subjects not complying with the principle of legal reservation.The rationality problems are not conducive to the protection of the interests of anti-doping personal information subjects.On the surface,the problems of legality of international industry self-regulation rules also infringe upon the interests of personal information subjects;but under the premise that the anti-doping public interest is proved,the lack of legal basis actually has potential harm to the interests of anti-doping organizations as processors and the anti-doping public interest.The main reasons for the above problems are that the international industry self-regulation rules are limited by the relevant legislations on personal data protection,and the self-interest of industry organizations.In addition,the anti-doping personal information subjects have a negative attitude towards safeguarding their rights,which further indicates the importance of"spontaneous" improvement of industry self-regulation rules.The ways to solve the rationality problems of international industry self-regulation rules are to normalize the use of terms,to adjust the order of provisions,to clarify the third-party agents’ obligations and the corresponding responsibilities of anti-doping organizations,to supplement the contents and objects of notice,to adjust the restriction on the right of access,to request anti-doping organizations to conclude personal information protection provisions when transferring personal information to third parties,and to increase the means of industry relief.The solution to the problem with regard to legal basis is to seek the establishment of special provisions for processing of anti-doping personal information in domestic laws based on the international obligations of countries in accordance with International Convention against Doping in Sport.For China,in order to ensure the legality and rule-compliance of anti-doping personal information processing as well as to protect the interests of personal information subjects,attention should be paid to the coordination between international industry self-regulation rules and domestic laws.Due to the limited number of previous domestic laws applicable to anti-doping organizations in China and the lack of operational provisions therein,there used to be not many conflicts between international industry self-regulation rules and domestic laws.However,it is necessary to attach attention to the newly effective Civil Code of the People’s Republic of China and the upcoming Law of the People’s Republic of China on the Personal Information Protection,and to timely update relevant domestic regulations.In regard to the realization of the interests of anti-doping organizations as processors and the anti-doping public interest,relevant legal norms in China have not made unreasonable restrictions on the cross-border transfer of anti-doping personal information.Based on China’s international obligations in terms of anti-doping,this practice should continue to be adhered to.In addition,in order to provide a more solid legal basis for the processing of anti-doping personal information and to avoid the possible legal risks,it is recommended to follow foreign examples to establish special provisions on the processing of anti-doping personal information in the Regulations of the People’s Republic of China on Anti-Doping.