On Civil Protection Of Personal Information

As the society develops, technology renews quickly. In company with the personal information being collected to help the government working more efficient and to promote market economy, it is also being illegally collected, maliciously used and altered, or even interrupted the peaceful life of the individuals, the need to protect the personal information has been a great situation that we could not ignored. The protection of the personal information covers several fields of the law science which hence to be highly worthy to research. In this article, the author discussed several basic problems about the personal information by comparing the legal protection system and the results of the theoretical research in China and other foreign countries. The whole discussion in this article is based on the civil law perspective, concentrating on several basic problems, hoping to do some favor to the process of the personal information legislation. The article is divided into four parts:In the first part, the author concentrated on the illustration of the related concepts, the definition, the characteristics and the different categories of the personal information. The personal information is the name and the sex of an individual, it also includes the birth date, the race, the marriage situation, the education background, the resume, the physical situation, the financial information and the objective information that would identify an individual in any circumstances compared to other information. The characteristics of the personal information includes: 1 the subject of the personal information is natural person; 2 the personal information is able to identify the main body directly or indirectly; 3 the personal information has a nature of personal right and also a property right; 4 the personal right is an objective right. According to different standards, we can classify the personal information into the direct personal in formation and the indirect personal information, the sensitive and normal personal information, the automatically processed and the un-automatically personal information, the open and the private personal information, the personal and the subject-matter personal information.The second part is mainly about the civil law nature of the personal information. It is widely accepted in legislations and the scholar fields of our nation and foreign countries that the personal information as a right should be protected by the civil law, but there still have many argues about the civil law nature of the personal information, the personal information as an object, it should be covered by which kind of rights is still in discussion. The main viewpoints includes the object of privacy, the object of the right of the personality, the object of the ownership, the object of the new right, the object of the intellectual property right, the object of the property right (the dualism right). The USA is the representative of the object of privacy right, this theory puts emphasize on considering the personal information as the object of privacy right; the scholar who support the theory of the object of the right of personality considered the personal information as an object of the right of personality, it should be protected by revising the traditional theories of the right of personality. From a ownership point of view, the personal information is a financial interest, according to the principles of ownership, the owner is entitled to have dominium utile, the right of use, the right of earning, the right of disposing, as long as these rights would not violate the law and the public interests. The theory of the new right considers the personal information as neither an object of the privacy right nor the object of the ownership or the right of personality; it is the object of a new right. The theory of intellectual right tried to escape from the argument between the right of personality and the property right, the scholars argue that the personal information should be covered by the intellectual right. The theory of the property right (the dualism right) argued the personal information should be the object of the right of personality and the property right, and these two rights should be considered to be tools to regulate the benefits. The author analyzed the theories above and concluded that the personal information should be the object of the right of personality, and also be better be regulated by the concrete scope of the right of personality, on the basis of admitting the personal information as an object of the right of personality. In the future, the civil law nature of the personal information should be identified to provide better protection on the personal information under the civil law system.The third part is about the rights owned by the subjects of the personal information and the restraints on these rights. These rights are the right to know, the right of privacy , the right of correction, the right to block, the right to delete, the right of claim. It is also important to restrict these rights, this restriction is mainly about measures the value of the protection and circulation of the personal information, the proper protection and the legitimate use should be combined, in order to attain the utility of the personal interests and the social interests. In addition, it should also be noted that the restrictions on civil rights go too far, there should be explicit regulation on the conditions when the restriction be imposed and the resorts the obligee could have when they are not satisfaction with the restrictions, the restrictions should also be explained and applied rigorously in the trial. The legislation of the personal information should identify what rights the subjects of the personal information could have on considering the legislation models and the research results in our nation and the foreign countries, and also be concerned about the protection and the free circulation of the personal information.In the forth part, the author discussed about the propertized personal information. The personal information as a scarce resource, it is becoming the objectives of the business circle. Under such a circumstance, people highly focus on the collection, disposition and the trade of the personal information. On the one hand the personal information should be positively protected, on the other hand, the modern need on personal information should be fully fulfilled, hence the civil law academic circles should give enough attention on the problems of the propertized personal information. During the process of the property the personal information , there are two modes: initiative application and passive application, the initiative application is the subjects of the personal information offer their information initiatively to get paid, the typical way is the resources on the internet; the passive application is to say that the collectors collect the information purpose of making profits, hence enlarge the potential customers or sell the personal information. The passive application is the leading mode in recent propertized information field. The author analyzed the advantages of the system of the propertized information: firstly, protecting personal information in an initiative way; secondly, giving the users of the personal information chances to get profits; thirdly, reducing the intermediate links in the collection of the personal information; fourthly, ensuring the reality and the integration of the personal information. Several basic problems should be noted, first of all, after the firstly used of the personal information, as the market in which information be traded is not perfect, the subjects of the information could not control the downstream conditions of their information, the law should adopt some compulsory norms to protect the subjects, to ensure after the first use there still some bargaining opportunities, thus, the use-transfer restrictions are necessary. Secondly, because of the information are not symmetric, compared to the collectors and the processors, the subjects are in a weak position, if there are no compulsory norms to force the processors to disclose the information in the processing, but only the contract between different parties, the additional use and transfer of the information would not be avoided, hence default rules must be established. Default rules enhanced the use-transfer restrictions, it would avoid the secondly inappropriately use and transfer of the personal information. Thirdly, the right of refusing in the first trade is not enough to the traders, and if the right of refusing is just regulated by the contractual measures, the subjects would not be protected effectively, hence the right of exit is necessary, by entitling the subjects right of exit, the malicious traders would be expelled, and potential customers would not provide their information to cheaters, hence their behalf would be protected, and also do great favour to establish the information trading market. Fourthly, unify the legislation to regulate the propertiezed personal information, unified legislation is more suitable to our country, this mode considers the unification of the protection of the personal information, and care about the administrative and personal institutions have connections in dealing with the personal information behaviors, and it help to unify the judicial actions. Fifthly, establishing the institutions on the information trading, institutions monitor the trade after the first trade, and sue on behalf of the subjects, hence protect the personal information.