Dilemma And Improvement Path Of Application Of Informed Consent Rules In Personal Information Protection

In recent years,personal information leakage incidents are common,and personal information protection has become the focus of people’s attention.With the promulgation and implementation of the civil code,the basic principles of personal information protection have been established in the field of information protection,which are mainly reflected in article1035 of the civil code,including the principles of legality,legitimacy and necessity.In addition,the rule of informed consent in the protection of personal information is also generally considered to run through all aspects of information collection and processing,but because the rule of informed consent is only a general provision,there is no specific system,resulting in problems in the application of the rule in judicial practice.As the key link of prior protection,informed consent rules play an important role in the operation of personal information protection mechanism.However,with the advent of the era of big data,the rule of informed consent has been severely challenged.On the one hand,due to the asymmetry of information,the Internet enterprises,which occupy a strong position in information control,make it difficult for the information subject to form a comprehensive and accurate understanding of personal information through the design of privacy terms,such as the scope,method and purpose of information collection;On the other hand,the validity of consent has its own limitations.It is difficult to achieve consent based on full knowledge and freedom,and absolute consent can not be achieved in many scenarios.Therefore,in order to effectively use the principle of informed consent to improve the protection of personal information,solving the dilemma of the principle of informed consent is an inevitable problem in the field of personal information protection.In order to solve the impact of the Internet big data era on personal information,the European Union and the United States have reformed the traditional principle of informed consent from different angles.China’s personal information protection law(Draft)also regulates the rules of informed consent.However,there are still some defects in the way of informed consent and the information subject’s consent.Therefore,to improve the informed consent rule and make it play its due role in the field of personal information protection,we need to consider comprehensively from the theoretical level,legislative status,judicial practice and other angles,analyze the application dilemma,so as to gradually improve the consent rule in personal information protection.This paper is divided into four parts.The first part first combs the legislative status of informed consent rules in personal information protection in China.Then it analyzes the difficulties of informed consent rules in China’s judicial practice by using the method of case analysis,mainly including the failure of Internet enterprises to fulfill the truly transparent obligation of disclosure,the forced consent of information subjects,and the negative economic benefits of applying the consent rules.The second part starts from the basic theory of informed consent rules in personal information protection,introduces the basic theory of informed consent rules,mainly analyzes the concept and nature of informed consent and the legitimacy basis of informed consent rules,and mainly explains the theory of self-determination of personal information and information asymmetry.The third part,through comparative analysis,analyzes and compares the legislative situation and theoretical achievements of foreign countries,such as the United States,the European Union and other countries,and then analyzes the reference of the legislation of the European Union and the United States for China in the application of informed consent rules,hoping to provide some Enlightenment for China in the process of improving the informed consent rules.In the process of reshaping the rules of informed consent,we should balance the conflict between information protection and efficiency.The fourth part is mainly about the improvement of the rules of informed consent in the protection of personal information in our country.On the basis of summarizing and analyzing the existing theoretical research and legislative norms,this paper re examines the principle of informed consent in our country from the legislative experience of foreign countries,and attempts to establish the rules of informed consent with full disclosure and free consent.This part mainly expounds the measures that should be taken in the reshaping of personal information consent rules,including the information collectors represented by Internet enterprises should fulfill the clear and sufficient obligation to inform,the information subject should adhere to the true expression of intention when making the consent,and the value of law of interest balance should be adhered to in the reshaping of personal information consent rules.