On The Application Dilemma And Countermeasures Of Informed Consent Rules

One end of personal information is connected with the information subject,and the other end leads to others,collectives and society.Personal information has the properties of subject interests and social interests.In order to protect personal information and coordinate the use of personal information,informed consent rules emerge at the historic moment.As the world moves from the era of small data to the era of big data,and with the wide application of information technologies such as the Internet,big data and cloud computing,informed consent rules are faced with many application difficulties: In terms of design and application,there are some difficulties,such as insufficient information,insufficient validity of consent,deviation of logic basis of rules,improper sharing of rules,high cost of rule operation,and aggravation of contradiction between the dual attributes of personal information.In terms of private law relief,contract law and tort law provide insufficient relief for civil liability of violation of informed consent rules.The emergence of the above dilemma has triggered the discussion of whether the informed consent rules should be kept or abolished in the protection of personal information.Stick to the informed consent rule has its significance and value: it was a profound freedom value and the rational people-oriented concept,autonomy is self-determination into vivid practice in the field of personal information protection,information can help the information potential difference between the subject and information processing,pushing the two sides between the main body ",in fact,the status of inequality and the abstract equal status " toward self-consistent.It can protect the autonomy and self-determination of the information subject,protect the rights and interests of personal information,and coordinate the connection between the network communication context and the traditional communication context,as well as the civil regulation and the criminal regulation.Therefore,informed consent rules should be adhers to.The solutions to the dilemma of informed consent rules are as follows:In perfecting the informed consent rule level,emphasis on "people-oriented,balancing of interests" as the guiding idea of personal information protection,fixed rule logic foundation,perfect the inform obligation to perform,to distinguish the applicable agreed rules,explicitly agree to elements added and agreed terms,set agree with exemption from restrictions,the implementation of the third party liability information processing,Introducing and developing the payment model of the subject of personal information protection;In order to improve the relief of the violation of informed consent rules in private law,we should set immunity for the non-breaching party’s impairment obligation in privacy agreement,adjust the standard of proof and the burden of proof,introduce punitive damages,and play the role of civil public interest litigation.Through the above measures,it will help optimize the relevant norms of personal information protection in China,coordinate the protection of interests of information subjects and the realization of interests of information processors,better deal with the relationship between personal information protection and big data background,and promote the vigorous development of data governance and data economy in China.