Research On The Protection Of Individually Identifiable Health Information By Civil Law

In civil legal relationship,protection of health information is an old but often changing topic.On the one hand,respecting patients' secrets,which has been regarded as a certain moral requirement as a member of the medical profession since ancient times,still plays an important role in modern positive law and other statute made by non-government organization.On the other hand,with the development of patients' rights movement and the advent of the era of big data,problems of personal information leakage has become increasingly prominent.In consequence,it is high time to comb existing laws,cases,and theories in different legal areas to sum up the framework of the right systems,which suits China's national conditions,so as to provide systematic protection for individually identifiable health information.Individually identifiable health information is a kind of personal information,legally protected personality interests,which must have all three characters at once: firstly,the subject can only be natural person;secondly,the information have been recorded on certain material carrier,and thirdly,it concerns an identified or identifiable natural person.In addition,it should also refer to medical care,which distinguish it from other kinds of personal information.Generally,collectors should be medical institutions,while users can be various,in terms of information dissemination process.Therefore,individually identifiable health information is more likely to be infringed than other personal information.Furthermore,sensitive information as it is,it may incur more damages by tort.The protection of individually identifiable health information by civil law relies primarily on the right to privacy and the general personality right(allgemeines Pers?nlichkeitsrecht)that are borrowed from the U.S.law and the German law respectively.Objects of the right to privacy in American law include peace of private life,private concern,personality image,and the exclusive advantage of name or likeness.According to the U.S.law,economic interests of a person's persona are protected by the right of publicity that is independent of the right to privacy.However,the right to privacy is a kind of specific personality right in P.R.C.law,and the right to information privacy should be defined as the right to control the dissemination of sensitive information.Based on human dignity and freedom,in German law the general personality right,protecting both personal interests and property interests,has two respects—one is deemed as a kind of natural rights,the other legal rights.The personal freedom and human dignity of a natural person shall be protected by law,which is also regulated by General Provisions of the Civil Law of the People's Republic of China.The general personality right can be understood as the general clause of personality right,so that it can provide a legal basis for the protection of fundamental rights,dominant rights,as well as procedural rights of data subject.In addition,on account of problems on market imperfections,information downstream,the character of public goods,the ownership of property rights,the integration of intellectual property system,and negative impacts on freedom of expression,the property right theory on personal information can hardly achieve its goal of autonomy of will on transaction price,either internalization of external costs.Nonetheless,with its property value are permitted within rational ambit,personal information shall also be protected by the right to claim by a contract,unjust enrichment and infringement.