Research On The Rules Of Informed Consent Of Personal Information

Article 1 of the personal Information Protection Law of the people’s Republic of China stipulates that the aim of legislation is to defend the rights and interests of personal information,accelerate the rational use of information,and clarifies the basis for the formulation of the Constitution.It is the first special law on the protection of personal information in China.The inviolability of personal dignity is the constitutional basis for the protection of personal information.No matter from the constitutional interpretation or legislative mode,personal information should become a basic right worthy of constitutional protection.The key to personal information protection lies in information processing.Informed consent is the basic rule of information processing.The principle of informed consent derived from the field of medical treatment,which aims to protect patients’ right to know and self-determination,and then was introduced into the field of personal information protection.The rule of informed consent is closely related to the right to self-determination of information,the right of personal dignity in civil law and the interests of personal information,contract autonomy and the authorization principle based on trust.However,informed consent is not absolute.Based on legal licensing matters,risk prevention and control needs and the purpose of public interest,information processing behavior is not restricted by informed consent.Empirical research shows that although the rule of informed consent and its exceptions are adopted by the laws of most countries,there are dilemmas in the application and the disordered extension of exceptions in practice.The effective implementation of informed consent rules is the cornerstone of personal information protection,and it is constitutionally necessary to restrict it.Although informed consent is the legal basis of information processing,compared with the freedom of communication and the right to communication secrets,equal rights,the right to freedom of residence and the right to personal information protected by the Constitution,the latter has the status of priority protection.Meanwhile,informed consent should also conform to the principles of legality,legitimacy and necessity.As far as the exception of informed consent is concerned,information security should still be put forward,as from the perspective of value balance,security value is the starting point and foothold of all actions,and should be protected before the value of efficiency.Meanwhile,the exception of informed consent should also meet the limitation of "reasonable scope",which can help the inormation processing behavior to meet the protection purpose.Under the background of "Civil Code","Personal Information Protection Law","Data Security Law","Network Security Law" and a series of administrative regulations,judicial interpretations and national standards,the protection of personal information is the trend of the times and the inherent requirement.The protection of personal information should adhere to the rules of informed consent,repair its disadvantages,improve the differential protection of informed consent,strengthen the protection of sensitive information and important data,and explore the mode of situational protection.The responsibility of the information subject and the information processor should be reasonably distributed according to the risk prevention ability and risk level.At the same time,we should emphasize the benefits of the systematicness,integrity and effectiveness of the public law protection of personal information,strengthen administrative supervision.On the one hand,explore the establishment of administrative license system for personal information processing,establish multiple licensing standards,and strengthen the examination of administrative licensing;on the other hand,improve the system of follow-up inspection and adjudication.Finally,it will realize the dual legal interests of the protection of personal information rights and interests and the use of personal information.