| In the field of personal information protection,it is a natural choice to endow the information subject with the right of self-determination and exclusion of interference Article 111 of the General Rules of Civil Law of the People's Republic of China which provides on "personal information right" indicates that China also takes the approach of protecting personal information by Civil law which based on the principle of equality of subject and autonomy of will.The establishment of personal information right is to grant the right to control one's personal information,and therefore the prior informed consent which thoroughly embodies one's control of personal information become the core main factor of personal information right Besides,the prior informed consent is also the best way to realize self-determination of one's personal information.Based on this,the principle of informed consent has been generally adopted in Chinese legislation system as one of the basic principle.The principle of informed consent provided in existing law embodies the typical characteristics of the traditional principle of informed consent,regarding the absolute control of individual information as the only legitimate basis of information processing.In another words,China has adopted the abovesaid "strong control approach" to protect individual's information right.While in recent years,the "strong control approach" has been repeatedly and increasingly criticized and questioned by scholars,and it also encounters lots of unexpected difficulties in practice.Most questions focused on whether the informed consent principle could really lead to strong control of individuals,and if yes,to what extent does the informed consent principle hinder the big data industry.In view of the important position that the prior informed consent principle occupies in Civil law and in compromising interest between the Protection and Usage of personal information,the Author believes it is necessary to re-examine the Principle formally and carefully.Based on this,this paper tries to prove:Failure of Informed Consent Principle,including its disadvantages and dilemma in practice,and restricting the application of informed consent principle appropriately and taking into account the value of reasonable usage of personal information would be a practical way to solve the problem.Therefore,this paper would firstly starts from the dilemma of the principle of informed consent,and secondly being the analysis of the root causes of the failure of the principle of informed consent,and then thirdly discuss the feasibility of layered consent mechanisms as a possible solution to achieve the interests balance between the protection and usage of information,and finally,launches the concrete norms and rules of the perfection of the principle of informed consent.Specifically,with respect to the foregoing legal issues,this article is divided into four chapters to stateThe first chapter examines the problems and dilemmas of informed consent principle in practice.In the legislative practice,the legislator overemphasizes the absolute right of control of the information subject,stipulating that the consent of the information subject and the limitation of the aim should be strictly abided by,and regarding individual's consent as the only legal basis of any further information processing.However,the principle of informed consent does not live up to legislator's expectation at all.On one hand,the informed consent principle could not lead to strong control of individuals,on the other hand,it to great extent hinder the big data industry.To sum up,compared with administrative law enforcement and criminal justice,information subjects can hardly obtain any effective relief by civil law.Chapter Two analyzes the reasons why the principle of informed consent faces lots of problems in practice.Personal information has both the attributes of personal rights and the value of property rights.Therefore,the diversification of the interest body involved inevitably results in tough competition,especially in the process of data flow.Obviously,the traditional informed consent principle fails to deal with the conflict of interest.On one side,the strong protection approach completely ignores the desperate demand of big data industry on the development and utilization of personal information,while on the other side,in fact,the absolute control approach fails to survive from the big data era since it does not fit for customer's using habit and the need for convenience.Therefore,the existing legal regulations result in obvious imbalance of interests between the protection and usage of personal information,which is exactly the fundamental reason for the failure of informed consent principle.Chapter Three proves that balancing interests between informed consent Principle and reasonable use of personal information could be realized by layered consent mechanism as one of the possible solution.In relieving the difficult positions,remold of values and rebalance of the interests is the most important part.It means,paying more attention on technological innovation and industrial development,and giving more weight to reasonable demands of the information industry is of same equal importance,if not more,as protecting human dignity and equality of the information subjects.While,layered consent mechanism depends on different scenario and risk assessment result is a feasible way to achieve the balance of interests,since it not only considers the infringement risk in the process of information usage,but also pays attention on the differentiation of all kinds of specific scenarioChapter Four specifies the ways of balancing interests between informed consent Principle and reasonable use of personal information.The author believes that the balance of interests could be achieved by measures such as inducing necessary exemptions of the principle of informed consent,adoption of risk assessment in specific scenarios,taking approach of layered consent,and continuous and effective information disclosure system. |
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