| Item 1,Paragraph 1 of Article 1035 of the Civil Code stipulates the legality of personal information processing,while Item 4 specifies the legality of Item 1,but there are still some problems.Improving the system of provisions on the legality of personal information processing in our country may achieve the balance between personal information protection and big data application.It provides a reference for the promulgation of the Law on the Protection of Personal Information.Prior to the promulgation of the Civil Code,the provisions on the legality of personal information processing in our country are mainly embodied in Article 41 of the Cyber Security Law and Article 29 of the Law on the Protection of Consumer Rights and Interests,that is,the informed consent of an information subject shall be the sole basis for legality.Article 1035 of the Civil Code has taken a step forward,adding new grounds for legal immunity,but it is still conservative in comparison.At present,the main problems facing the legal provisions of personal information processing in our country are: First,the core of the principle of informed consent is overemphasized.Whether the subject consents is a mere formality and excessive information selfdetermination will lead to the imbalance of value between the subject and the processor.The second is that the content of exemption is not clear enough,the concept of "public interest" itself is vague,the judge’s subjective judgment is too strong,easy to cause injustice.And there are differences in judicial practice on the legitimacy of dealing with "legally publicized" information.Third,the scope of legal exemption of personal information processing is small,and there are still great limitations.Actions taken to safeguard "contractual interests" and "commercial utilization" are not included in the scope of legal exemption,but those taken to safeguard "legitimate interests of natural persons" have a relatively small scope of exemption.To solve the above problems,first of all,the principle of informed consent should not be the first condition of non-private personal information processing,but should only be one of the legal bases.Secondly,the scope of the concept of "public interest" shall be clarified,and the legitimacy standards for handling information that is "legally made public" shall be clarified.Finally,the scope of legal exemption shall be expanded by adopting a broad interpretation of legitimate interests,introducing the EU balance testing as a condition for information processing activities,expanding the scope of exemptible "legitimate interests of natural persons" and including the handling of circumstances for maintaining "contractual interests" and "commercial utilization" into the scope of legal exemption.Strengthen the follow-up supervision over the handling activities,and grant the right of exit to the information subjects.Provide the information subjects in terms of remedies to the largest extent. |
