On The Right Of Personal Information And Its Legal Protection

The personal information protection is defined by the law as "interests" rather than "rights",the difference between one word can be said to be very different.The reason of calling for the right of personal information is rights are very important.It is absolute in practice,any actions contrary to individual rights can be resorted to the law.Important interests are defended by the law in the form of rights.Therefore,calling for the right of personal information is of great significance.Except for "Conclusion",this article consists of six chapters.The first chapter is "Introduction".The law does not clearly stipulate the right of personal information,probably because the personality rights norms are too strict,they are afraid to affect the development of the digital industry.In previous studies,legal battles over personal information have existed for a long time.Early views held that the right to personal information was merely an extension of the right to privacy on the Internet.After entering the digital society,the value of personal information has changed,and it is urgent to re-examine the right to personal information.The second chapter is titled "Why the right of Personal Information becomes a new type of right".Precisely because legal rights have a strong practical effect.The interests of advocating legal protection continue to increase.If legal rights are not set carefully enough,they will inevitably be abused.Therefore,the theoretical circle is very picky about the justification of new rights.Opponents believe that the establishment of new rights can only be done in realm thesis of new-rights and context thesis of new-rights.But the two are not necessary.Existing rights can replace new rights through dynamic aspect of rights.However,the dynamic of core rights is limited,and the emergence of new scene cannot be solved with unlimited dynamic.So the context thesis of new-rights is effective.Moral rights to legal rights is not intended for practical significance,it also has guiding and corrective meaning.The realm thesis of new-rights is effective.In a sufficiently urgent situation,the new benefits can be directly elevated to a legally protected situation,it is a third mode.The protection of personal information is moral rights,and right of personal information cannot be replaced by the dynamic of other rights.It makes sense for the right to personal information to become new rights.The third chapter is titled "Reconstruction of the Attributes of right of Personal Information".It is reasonable to explain the current legislation with the theory of interests,but it will encounter many difficulties in the future.Although the right of personal information belongs to the personality rights,it needs the cooperation of multi-sectoral laws.The theory of interests is limited to the doctrine of civil law but does not apply to other sectoral laws.In addition,the effect of the dichotomy of rights and interests is not obvious in practice.And the protection of interests will be more perfect through the accumulation of judicial experience,which can be transformed into rights.In reality,the information sharing behavior of individuals can be divided into active sharing and passive sharing.The former is based on the rules of informed consent,while the latter is based on the inability of individuals to refuse information services and mandatory handling regulations of the law.The inability of individuals to absolutely control their own information because of the self-sacrifice of individuals for the public interest,rather than pure free will.The law cannot deny the existence of individual rights for this reason.Personality rights can be interpreted as the right to be respected,and thus the right of personal information can be designed as the right to protect personal information.Based on this conception,the right of personal information does not need to emphasize personal standards such as control and self-determination,but need to shift to a social standard of mutual benefit and win-win.That is the institutional system centered on the right of informed consent is shifted to the institutional design centered on the principles of lawfulness,justification,and necessity.Chapter 4 is titled "The Structure of right of Personal Information".The subjects of right of personal information can be divided into information subjects,information processors and information regulators.Information processor refers to the civil subject who has obtained the right to process information,and the legal authorization requirements have been clearly stipulated.The object of personality rights is personality interest.Personal information carries a variety of personality interests,so the object of right of personal information is the macro personality interests.Personal information processing behavior is based on the trust of the right holder to the information processor,so the object of right of personal information also includes trust interests.Right as a ball,bundle of rights and right as modularity are all concepts in property law based on legal pragmatism.Personal information is an important factor of production and economical,so there is no natural obstacle to borrowing property law theory.Drawing lessons from the modularity theory proposed by Professor Smith,dividing personal information rights into blocks of different modularity,and supplementing the bundle of rights theory is a better choice.Chapter 5 is titled "Personal rights Law Protection of Right of Personal Information".At present,the protection of personal information in the Civil Code is not the right of personal information,and it may become the contents of right of personal information in the future.The value rank judgment of human dignity and technological development are important factors affecting judicial results,it is also a difficult problem in practice.The European model is too strict because it is an antitrust measure against overseas information processors.The actual situation in our country is different,so judicial efforts should be moderately slowed down to avoid the humanization of right of personal information.There are two main practical paths of the personality rights law,the right of claiming personality rights and the prohibition of personality rights.In personal information disputes,the right to claim needs to consider the subjective fault of the infringer.The prohibition of personality rights is a new system that requires more details.The prohibition of personality rights needs a time limit,if the rights holder does not file a lawsuit within the injunction period,the prohibition will become invalid after the expiry date,and no further application may be made.The prohibition on personality rights can only be applied to the protection of rights,not to interests.When applying for a prohibition,the judge needs to weigh the probability of winning the case.Chapter 6 is titled "Protection of Tort Law of right of Personal Information".Right of personal information can also be relieved by tort liability law,the right to claim tort liability is different from the right to claim personality rights.It does not have a preventive function,and needs to have actual damages,subjective faults,and the impact of statute of limitations,etc.The main method of liability is compensation.When applied,there are often two dilemmas: uncertainty in fact and uncertainty in perpetrators,which can only be improved by future legislation.Individuals’ infringement compensation should be set at a minimum.Group litigation with an uncertain number of people has problems such as narrow system functions and lack of incentives,we should consider learning from the opt-out system and setting up institutional incentives for rights holders.Chapter 7 is titled "Public Law Protection of right of Personal Information:Constitutional Expression and Preventive Optimization".The constitution of right of personal information conforms to international development trends and is conducive to the connection between the personality rights law and the constitution.The protection of right of personal information is related to personal and public interests.It should be clearly expressed by the Constitution,and should not be presumed by the provisions of general human rights or personality rights.The main task of public law is to prevent largescale infringement of personal information,and the risk of infringement is ultimately caused by technological means.The precautionary principle is a strong means of preventing scientific and technological risks by law,not applicable to personal information protection.But in reality,preventive actions by administrative agencies are very common.The consequences of misusing personal information are very serious and require strong legal precautions.Personal information processing behavior meets the initiation requirements of the precautionary principle.The law needs to set different thresholds according to the "strong" and "weak" of the precautionary principle.Avoid circular arguments of uncertain risks.