| The personalized algorithm generation technology based on user Internet protocol(IP)address,user search history,language,region and other components is applied to search engines and user portrait push,which has become a widely used sharp tool to grab profits for operators of major Internet platforms.Under this situation,stakeholder infringement of personal information rights and interests occurs frequently,which is intuitively manifested as"big data killing" and personal information leakage.Under the protection of Consumer Rights and Interests law and The Protection of Personal Information Law,the interests of users harmed by platform algorithm discrimination mainly include the right to fair trade and the rights and interests of personal information.China's vertical platform governance legislation for a long time has exposed the absence of consumer civil relief procedures.However,there is a logical deviation in the narrow path for ordinary consumers to Sue for civil infringement:the private subjects who initiate relief are not enough in income and ability,and obviously lack of motivation to protect their rights.Individuals and general enterprises basically lack the ability,authority and capital to collect network algorithm operation data and background programs and compare and verify them.Even if the above conditions are met,platform operators often suffer only administrative penalties as a result of rights protection.In addition,the traditional tort liability in the judicial application of the field of data acclimatization,the means of civil private interest litigation has been unable to properly adapt to large-scale algorithm infringement problem,civil public interest litigation system will become the best way to judicial control of personal information infringement problem.Firstly,from the aspects of connotation definition,denotation identification,scope expansion and reinforcement basis,the harm of platform operators' abuse of algorithm generation technology on the level of social public interest is clearly defined,and then the logical motivation and realistic needs of introducing civil public interest litigation system to deal with algorithm infringement are discussed.The ultimate goal of civil public interest litigation system to achieve social progress and legal reform in terms of public interests is to promote the implementation and revision of laws and regulations related to algorithmic problems through litigation,and to urge the functional supervision departments of the government to perform their duties of maintaining market competition order and protecting personal information and data security.Secondly,although the compound legal liability caused by the act of infringing personal information is regulated by public law to a certain extent,its civil liability has been blank for a long time.With the establishment and improvement of personal information law and market regulation law and the systematization of civil tort request norms,the civil accountability of personal information protection gradually has laws to follow.Under the framework of civil public interest litigation in our country,the personal information management to the rights of the object is not specific most fair trade rights and personal information rights and interests of consumers,the platform operator shall be under the corresponding claims to assume corresponding civil liability of infringement of personal information,this shift in specification level and theoretical level certificate.At the same time,the interest of litigation,as a standard to evaluate whether the litigation claims in specific tort cases are necessary and effective,can be used as the antecedent of reasoning logic.Thirdly,in the logical structure of modern litigation procedure,there will be a lot of discomfort in dealing with this kind of personal information infringement consumer group litigation disputes.Because of the large number of the injured subject and the difficulty to detect the problem,the representative litigation relief is easy to run into the virtual.At the same time,public interest litigation and private interest litigation can be applied in parallel under the mode of "stage dichotomy".After the eligible subject files an algorithmic tort civil public interest lawsuit,the injured subject can still Sue separately.In order to solve the above dilemmas of diffuse public interest infringement and maintain a balance between dispute resolution efficiency,due process guarantee and deprivation of economic motivation,the theory of eligibility of parties has the possibility of expansion,specifically,including consumer associations,procuratorial organs and even individual citizens.It is necessary to distinguish the legitimacy and rationality of the litigation subject's right.Finally,based on the characteristics of extensive and hidden technology of stakeholders of personal information infringement,through combing the current legal norm system and analyzing the status quo of judicial protection,the relevant procedural rules of civil public interest litigation should be balanced and improved.In order to eliminate the inequality between the litigant and the litigant,reduce the cost of individual litigation,enhance the public's participation in the process,reduce the difficulty of proof under the information asymmetry and other aspects to break the existing relief mechanism barriers,so as to ultimately improve the effectiveness of litigation.In addition,whether the punitive damages system can be embedded in the algorithm tort civil public interest litigation also needs to be considered.In other words,the punitive damages system is more severe than the general liability for damages.If it can be applied in the field of algorithm tort,it must be strictly limited by the principle of litigation and through legal procedures.Therefore,the author tries to start from the analytical paradigm of formal and substantial punitive damages claim and develop the conception of specific applicable rules within the framework of litigation enforcement right. |
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