Human Flesh Search And Privacy Right Protection

"Human flesh search" is an extremely popular Internet and social phenomenon in recent years. Its emergence makes people exclaim that the age of "everyone being the police" comes. "Human flesh search" refers to "another way of searching for information which is distinct from machine search (search engines such as Baidu and Google), it's a way of acquiring information and resources by gathering the strength of netizens, it's a way of collecting information which includes making use of machine search engine on the Internet(e.g. Baidu) and the information that netizens could access in daily life. " It is no doubt that "human flesh search" plays an incomparable role in media supervision. However, besides this, the power of "human flesh search" has become huge enough to arouse our concern. "Human flesh search" may violate other people's portrait right, reputation right and so on, but the most noticeable and worthy of study one is its violation of privacy right. It is generally believed that the concept and theory of privacy right was first proposed by American scholars, the legal system protecting privacy right was first established in America as well. After that, privacy right experiences different paths of development in all countries in the world. In the context of our country, the author considers privacy right as a kind of personality right which a natural person enjoys to protect his personal life and personal information secrets from being illegally harassed, acquainted with, gathered, utilized and disclosed. Moreover, how far the others could interfere a man's personal life, whether he discloses his privacy, the range and the degree of disclosure is all up to the subject of the right. "Human flesh search" involves various subjects, according to different subjects, the way of violating privacy right could be classified as violation of privacy right by the original information publisher, violation of privacy right by the initiator of "human flesh search", violation of privacy right by internet users who probe and disclose private information, violation of privacy right by internet users who spread the information and violation of privacy right by internet service providers. What is worthy to be discussed is whether the behaviour of releasing phone number, home address and other information of the person being searched constitutes a violation of privacy right. From the author's perspective, on the basis of the Internet's characteristic, such a behaviour should constitute a violation. In the violation of privacy right by "human flesh search", constitutive requisites for tort liability consists of unlawful act, damages result, causation between unlawful act and damages result, and the tortfeasor's fault. The defence excuse includes the public interest defence, the defence arguing that the person being searched is a public figure, and the defence of the victim's consent. Without a defence excuse or the defence excuse fails, the person responsible for "human flesh search" that violates other people's privacy rights should assume the tort liability. The mode of assuming tort liabilities includes cessation of the infringing act, formal apology and compensation for loss. Meanwhile, the joint tort is constituted among the original information publisher, the initiator of "human flesh search", internet users who probe and disclose private information and internet users who spread the information, thus they should assume joint and several liability. The liability internet service providers should assume has already been provided in the PRC Tort Liability Law. Although it is easy to discuss the liability undertaking of "human flesh search" which violates other people's privacy right in theory, in reality, the victim encounters many difficulties in claiming internet users and internet service providers to bear responsibilities for tort, especially in claiming internet users to assume the responsibilities, the most difficult part is to identify the tortfeasor. Nevertheless, in order to prevent "human flesh search" from evolving into internet violence, countermeasures need to be sought to keep "human flesh search" from violating privacy right. In addition to strengthening the sense of respecting other people's privacy and the sense of protecting one's own privacy, it is worthy for us to learn from American industry self-discipline mode and European legislation mode. However, in view of our country's actual circumstances and legal traditions, the author considers the mode of legislative regulation suits our country much better. To prevent "human flesh search" from violating privacy right, we shall start with general legislation of privacy protection and legislation of privacy protection under the Internet environment both sides, it is particularly important to enact Personal Information Protection Act as soon as possible. Meanwhile, in order to overcome the difficulty of identifying the tortfeasor, it is necessary to implement the Internet real-name registration system, and we could use Korean experience for reference.