Research On The Improvement Path Of Informed Consent In Personal Information Protection

As a legal framework,the rule of informed consent is a basic system established by Chinese law to protect personal information.Informed consent rules focus on the prior permission of personal data subject to information processing.Under the background of rapid development of information economy,rigid informed consent rules can not provide adequate protection for personal data subject,and to some extent hinder the further excavation of economic value and social benefit after the aggregation of personal information.It is necessary for the law to reflect on and r e c o n s t r u c t i t.The first chapter of this paper summarizes the informed consent rules in the protection of personal information in China.As one of the main regulatory means of personal information protection,informed consent has become the legitimate basis of personal information processing recognized by the international community.Informed consent rules are the core of the existing information protection requirements in China.At the same time,the number of legal provisions of relevant legislation is limited,the scope of application is relatively narrow,there is no clear and detailed provisions,and there is no systematic unity and echo between laws and regulations.In the process of practice,informed consent rules also expose significant functional alienation,mainly reflected in that most users simply do not read the privacy policies provided by enterprises,even if they read the relevant policies,operators will prevent users fromreally understanding their policies,and if users do not accept the privacy policies formulated by enterprises,enterprises will refuse to provide their products and services.Therefore,in order to enjoy the convenience,the personal data subject can only express its consent.Finally,once the user gives his consent,even if he seeks remedies from the regulatory authorities for damages caused by the excessive collection and improper use of the enterprise,the enterprise is likely to evade the relevant responsibilities according to the original authorization.Informed consent rules are difficult to effectively protect the rights of personal data subjects,so it is i m p e r a t i v e t o o p t i m i z e t h e m.The second chapter of the paper analyses the dilemma of informed consent rule.Information processing behavior requires prior notification and consent of the personal data subject.The theoretical basis of this rule is based on the private nature of personal information.Personal information is closely related to personality interests.Infringement on personal information may directly damage the spiritual personality interests,material personality interests and behavioral personality interests of the personal data subject.Based on the protection of human dignity and personal freedom,individuals should have the right to control the use of their personal information.However,personal information also has public attributes.As a social tool,it has social value,as a means of production of data economy,it has economic value and as a bottom resource of social management,it has public management value.Therefore,personal information should also be controlled by society.At present,the personal data subject's control ability and decision freedom of personal information are weakening day by day.Data economy and public purpose also require the change of personal information from strong personal control to social control.Therefore,it is necessary to optimize the informed consent rule based on the principle of redistribution of control rights.From this point of view,the rule of informed consent in our country does not require the acquisition of consent,but relies on the self-restraint of information controllers,and its formalization hinders the realization of rights protection;the rule of informed consent is too widely applied,and therequirements of different legal norms are not uniform,and its generalization restricts the development of society;and there is no special data protection institution in our country.Lack of daily supervision of data processing behavior,coupled with inadequate punishment of infringement of personal information by law,can hardly deter the enforceability of law,weaken the authority of legislation and the effectiveness of management,and weaken the effect of regulation.In the third chapter,the author puts forward the countermeasures to improve the informed consent rule from the perspective of social control.First of all,we should ensure the substantive rule of informed consent.The first is to improve the requirement of consent notification,not only to inform users in a striking,transparent and easily accessible form,but also to require the personal data controller to use clear and concise language to ensure that the data subject has a full understanding.The second is to restrict the expression of consent,which stipulates that clear and explicit consent of the personal data subject must be obtained,but the way of "selection" can be used to reduce the cost of obtaining consent,and users have full autonomous control over the status of their rights.The third is to fully respect the free will of the personal data subject and allow the individual to choose to refuse to provide or disagree with the automatic collection of personal information item by item.Secondly,the rule of informed consent should be limited and its exemption and exclusion should be stipulated.As for the exemption of informed consent rule,it can stipulate that there are various legitimate reasons for personal information processing,and promote the anonymity of personal information.Through behavior regulation,anonymity can become a legal protection state that can be achieved,taking the protection of personal information and the use of information circulation into account.For the exclusion of the rule of informed consent,we should use the theory of expectancy to judge whether the user's consent is expectable according to the specific situation.If it does not meet the expectation,even if the user has given explicit consent,he can still oppose specific information activities.On the other hand,in the future,China should fully consider the absolute prohibition of some special personal information or special informationprocessing behavior,excluding the application of informed consent rules.Finally,we should strengthen the connection between informed consent rule and social control measures,clarify the corporate governance responsibility as the subject of obligation,establish the supervision system of the whole process of personal information and strengthen the sanctions against the protection of personal information to fully embody the state's respect for the subject of private rights,and to promote the construction of a society ruled by law.