An Approach To Protecting Personal Information Viewing From The Human Rights Law

The application of information processing technology in the digital age has a deep impact on human society and is being widely concerned by various disciplines.Rising to the level of human rights law,the research on personal information rights and interests has become an important basis for all countries to realize all-round,deep-seated and systematic protection.Analyzing the protection of personal information from the perspective of human rights law involves five dimensions: basic category,right basis,normative change,value balance and institutional path.In addition to the introduction and conclusion,the main part of this thesis is divided into five chapters.The chapter Ⅰ difines the basic categories of personal information protection.Firstly,The normative protection of personal information stems from the consideration of human rights and traditional ideas.The relevance theory,identification theory and privacy theory of personal information have their own value basis and protection objectives.The legal norms concept of personal information in China is gradually formed in response to the practical needs of information processing and learning from the legislative experience of European and American countries,and constructed on the basis of identification and relevance.The boundary of personal information in the legal sense should be comprehensively determined from the perspectives of effectiveness and redundancy,identification structure and degree,and information use purpose.Secondly,the practice of information processing enriches the definition of "human" and reshapes human’s "living" environment.The interaction between "people" and "personal information" not only brings great possibilities,but also brings allround social risks.Information processing technology in the digital age also has significant micro power characteristics,and personal information protection urgently needs to respond to the social risks brought by technological change.The continuous debate among scholars in various fields has raised the protection of personal information to a meta issue,prompting the academic circles to turn their research to the perspective of human rights law,trying to provide it with the basis of natural rights,the basis of normative rights and the protection of real rights.Thirdly,the traditional protection norms still have practical difficulties in dealing with the disorderly collection of information,the control of algorithms on people,and the discriminatory expression of auxiliary decision-making.To systematically respond to these problems,we need to examine the legitimacy basis of normative rights.The chapter Ⅱ reveals the natural right basis of personal information protection.The theory of personal information protection in the United States and Europe continues the historical tradition of the formation of their natural rights;The change of technology and environment enriches the expression of rights that should be.Historically,the protection of personal information in the United States and European countries has resorted to the natural right basis provided by constitutional basic rights and human rights theory,mainly including:the theory of information privacy formed by constitutional interpretation in the United States,whose right basis is privacy and negative freedom;The theory of information selfdetermination constructed by Germany through the deduction of dignity jurisprudence is based on the concept of dignity and the theory of obligation;American and European countries have adopted the theory of information property rights based on economic rationality and rational use,and its right basis is utilitarianism and teleology.The abovementioned theories embody the multi-faceted sources and related argumentation logic of the rights of the boundary,personality and purpose of personal information protection.According to the Marxist classical writers’ philosophical judgments on the essential attributes of human beings,there are significant defects in various theories.Marxist human rights theory requires that the natural right of personal information protection should be based on the three pillars of personal autonomy,freedom and minimum protection,and should be standardized on the basis of dignity and privacy,so as to achieve equality in dignity and rights.The chapter Ⅲ explains the construction and evolution of the norms of personal information rights.Since the end of the 20 th century,many countries have formed a normative system for personal information protection based on the empowerment and control of information subjects,and some countries have raised the right of personal information to the foundamental rights of constitution.The territorial legislative system constructed in China with the personal information protection law as the core is manifested in the internal structure of the combination of the right bundle of personal information under the basic rights of the Constitution and the obligation of state protection."Personal information rights" in the national human rights action plan(2021-2025)highlights the important positioning of the state for this right and points out the direction for the exercise of the right to personal information.With the deep influence of automatic processing technology in the digital age,the rights of informed consent,purpose restriction and minimizing influence have been continuously broken through,and the national responsibility to protect has been continuously strengthened.The continuous tension of rights and obligations in the field of personal information protection provides an endogenous driving force for the evolution of norms,and also promotes the focus of norms from individual standard to social standard,information processing from identification and control to communication and mutual trust,and the regulatory relationship from subject object opposition to intersubjectivity.The evolution of norms provides a systematic,compatible and collaborative benchmark for the orderly exercise of rights,and also provides a basis for the balance of various contradictions.The chapter Ⅳ analyzes the value balance basis of personal information protection.In the practice of information processing,there are four pairs of contradictions: instrumental rationality and value rationality,value concept and normative expression,efficiency and security,and the protection objectives and means of public and private law.To alleviate these contradictions,we need to be based on natural rights,based on the direction of normative evolution,measured in combination with the socialist core values,and adjusted by using the principle of contradiction unity.Therefore,value balance should be made in the following ways: first,the guidance of value rationality to technical rationality;Second,the standard expression of dignity value;Third,the cooperative construction of security obligation and rational use of information;Fourth,the systematic exercise of public and private law protection in the context of the right to development.In order to ensure the reasonable and orderly expression of personal information rights from the four dimensions of value guidance,dignity expression,coordination of rights and responsibilities and development balance.The chapter Ⅴ puts forward the optimization path of personal information protection.The value balance of personal information protection norms breeds a new order of governance in the digital age and guides the optimization of the path of right practice.First,we should implement the national human rights action plan,cultivate information literacy and awareness of rights and responsibilities of information subjects,promote human rights due diligence and industry self-discipline of information processors,and constantly improve the decisive power of information rights in practice.Secondly,we should take the national identity credibility strategy as the external guarantee,promote the formation of the mechanism of mutual trust negotiation under the value of dignity and privacy,and promote the regeneration of the contract system under the guidance of the third-party mechanism.Thirdly,we should improve the protection effectiveness of regulatory norms through the reflexive governance of regulatory subjects and the coordination of multiple subjects.Finally,learn from the dynamic system theory of the application of law,continuously improve the right relief system of personal information protection,and find and adjust the value of the expression of dignity and privacy.Highlight the four paths of order recognition,reconstruction of contract,effective governance and equitable creation,and promote people’s mutual trust and communication and the effective realization of rights in the digital age.The effective realization of personal information protection not only depends on the systematic and effective protection of domestic laws,but also needs to serve the consensus building,right shaping and normative coordination in the cross-border flow of information.The orderly adjustment and interaction between norms and practice will make the norms of personal information protection more constructive,explanatory and decisive,and then serve the realization of the human rights goal of a better life.