The Research On The Principle Of Informed Consent In The Protection Of Personal Information

The popularity of the Internet in the information age has changed the mode of information dissemination and circulation,and also raised new challenges to the protection of personal information.From the end of the 20 th century to the beginning of the 21 st century,a wave of personal information legislation was set off worldwide.Most countries have stipulated in the personal information legislation that a party collecting and using personal information needs to inform the information subject about the scope of information collection,use methods,etc.and obtain the Informed consent of the information subject.China also stipulates the principle of Informed consent in relevant laws such as the Cyber Security Law,the Consumer Rights Protection Law.With the continuous advancement of the process of informatization,the problems of the original personal information legislation in the era of big data have gradually become apparent.Among them,the unsuitability of the Informed consent principle to the new environment has caused many reflections.Personal information itself contains different values of personal dignity and freedom,business value,and public management value.Legislation needs to be measured and selected.The principle of Informed consent itself has the function of adjusting the interests between the information subject and the information industry.However,it can be seen from the personal information legislation of different value orientations of the European Union and the United States that the choice of pre-or post-control legislation directly affects the protection of personal personality rights,the realization of the commercial interests of the information industry,and the rise and fall of the entire Internet industry.However,the standpoint of protecting the rights and interests of information subjects in China's legislation lacks consideration of the interests of the information industry.Therefore,the effect is not satisfactory in practical applications.However,it should be noted that in reality,the information asymmetry between the information subject and the information industry,the unequal status of the technological strength,and the value of personal dignity and freedom contained in Informed consent itself determine that this principle should not be abandoned.However,in order to balance the relationship between the stakeholders,China's Informed consent principle needs to be changed from the basic principle to the general basis.At the same time,in the application,it must be restricted by other information collection and utilization rules and other laws,and it cannot be blindly replaced by the Informed consent of the information subject to comply with other requirements.Although China has stipulated a strict principle of consent,there are many problems in practical application.The design of the informed consent principle is based on considerations of the maintenance of the right to self-determination of personal information,correction of information asymmetry,and protection of the vulnerable groups,and has a legitimate theoretical basis;but the domestic implementation of the principle of consent presents a general lack of notification obligations and a lack of effective information subject consent.The principle of informed consent better meets the actual needs,and at the same time maximizes its positive role.The specific content of the specification can be adjusted from the aspects of notification and substance.On the one hand,the consent is subdivided.Specifically,tacit consent can be applied to the collection and utilization of personal general information which limited to the realization of basic service purposes,and implicit or explicit consent to collect personal general information beyond the basic service purpose,explicit consent for the collection and use of personal sensitive information together constitutes a legitimate basis for information processing.The "tacit consent" is an artificial consent.At the same time,it essentially guarantees that the consent is free and true.On the other hand,the notification obligation of the information subject is strengthened,including clear,easy-to-understand,comprehensive,accurate,and timely notification of the purpose,method,and scope of the collection and use of personal information by the information subject,layered notification of prominent priorities,and establishment of a continuous disclosure mechanism.The principle of informed consent is designed with the main purpose of risk prevention in mind,and there is no corresponding civil legal liability in legislation.The protection of informed consent depends on the overall design of the personal information protection legislation.Article 111 of the General Principles of the Civil Law can be linked to the provisions of the Tort Liability Protection Act for online information infringement or personality right infringement.Relief for violations of the principle of informed consent.Summarizing the above content,the following recommendations are made for the compilation of the Civil Code and the Personal Information Protection Law: First,the principle of Informed consent is used as one of the justifications for the collection of personal information,and other bases are listed together,and the specifics of notification and Informed consent are listed.The content is detailed,and all of them are included in the "Personal Information Protection Law" for regulation.Second,the "Civil Code(Personal Right)" formally establishes the "personal information right" to set the legal basis for the protection of the Informed consent principle;the third As for the relief of violation of the principle of Informed consent,the right of personal information and the content of the tort law can be connected,and the legal liability for specific violations of the right of personal information can be stipulated in the Civil Code(Responsibility of Tort).