Research On The Informed Consent Principle In The Personal Information Protection In The Era Of Big Data

Informed consent is the general principle of personal information protection law of all countries in the world.The purpose of informed consent is to balance the powerful information collector and protect the legitimate rights and interests of the information subject by performing the compulsory procedure of "informed consent" on both the information subject and the information collector.However,with the advent of the era of big data,the principle of informed consent has been severely challenged by the "consent dilemma".On the one hand,due to the lack of awareness of the consequences of consent,lack of informed initiative,forced consent and other reasons,the subject of information was always "told but did not know",the effectiveness of consent has been widely questioned;On the other hand,the informed consent principle(especially the strict informed consent principle)will form huge economic and social costs,which will further restrict the development of the information industry and affect social welfare.Therefore,how to solve the "consent dilemma" has become an unavoidable problem in front of us.In what way does the information collector fulfill the notification obligation to make the information subject "informed" ? Is the "consent" of the information subject valid,although in fact he or she is not "informed" ? Is there any need for the "informed consent" principle? This series of problems not only involve legal norms or logical deduction,but also involve the reasonable allocation of rights and obligations between information subjects and information collectors,as well as the contradiction and balance between protecting the information interests of private subjects and developing the information industry.In order to adapt to the development of the times and solve the dilemma of consent,the United States and the European Union,as the two pioneers of personal information protection,have reformed and innovated the traditional informed consent principle from different directions,but both of them have failed to solve the "consent dilemma" effectively.Constructing a set of informed consent system that is scientific and reasonable and adapts to the development of the times will not only help strengthen the protection of personal information in China,but also objectively promote thedevelopment of big data industry.It is an objective requirement for China to grab the opportunities in the era of big data.That is the reason why the system is so important.This paper comprehensively uses the methods of literature analysis,empirical analysis and comparative analysis to sort out the concept,source and legal basis of the principle of informed consent firstly.Then,through empirical methods,it studies the phenomenon of "told but did not know",and then analyzes the causes of the “consent dilemma” based on this;then,by comparing the foreign and China's relevant legislation,the paper tried to find the experience and possible way to solve the problem of informed consent;finally,based on the summarization of existing theoretical research and legislative exploration,the principle of informed consent is re-examined by the perspectives of boundary determination and behavioral identification to explore the answer of these questions: when “informed consent”is needed? what behavior can be judged as“effectively informed”? and what behavior can be presumed to be “clear consent”? The paper is divided into four parts:The first part introduces the basic connotation,origin and status of the principle of informed consent,and explores the theoretical basis and legal basis of the principle.The second part explores the causes of the information subject's“told but did not know”through empirical methods,and based on this,make a more in-depth study on the “consent dilemma” and the economic and social costs faced by the principle of informed consent in the era of big data.The third part sort out the provisions of the EU,the United States and China's current personal information protection legal system on the principle of informed consent,sum up the characteristics and compares these provisions,find the advantages of the existing various forms of informed consent and analyzes the remaining problems,so as to point out the direction for the subsequent theoretical reconstruction.The fourth part,based on the dual function of the informed consent principle: expressing perspectives of autonomy of information subject and protecting the rights of the information subject,from the two aspects of the relationship between personal information and personal dignity and the harmfulness of disclosure or improper use,the question “whether kinds ofpersonal information should be included in the principle of informed consent” is examined and then classified: the information that is related to personal dignity and is more likely to be compromised or improperly used,the information that is not related to personal dignity enough and is more likely to be compromised or improperly used,the information that is related to personal dignity and is less likely to be compromised or improperly used,and the information that is not related to personal dignity enough and is less likely to be compromised or improperly used.Based on this classification,this paper reconstruct the scope and implementation mechanism of the principle of informed consent.