On The Rules Of Informed Consent In The Protection Of Personal Information

In the information age,people's demand for personal information protection is more and more intense,and countries all over the world are actively protecting the information subject's right to self-determination of personal information.Article 111 of China's civil code puts subject equality and autonomy of will into the protection of personal information,and establishes "personal information right" as the basis of rights.The right of personal information reflects the information subject's strong control over his own information,which is usually realized by the way of informed consent.Therefore,the rule of informed consent of personal information has gradually become the core tool of personal information protection,which has also been recognized in China's legislation.But looking at the rules of informed consent of personal information in China's legislation,we almost regard "informed consent" as the only legitimate basis for personal information processing,and endow the information subject with the right of excessive control.This kind of informed consent rule under the strong protection has been criticized and questioned by scholars,and it also faces many difficulties in the specific application.First,the effectiveness of informed consent in the process of application is questioned due to many factors,such as the virtual effect of information,the weakening of decision-making freedom,the unrealistic premise of rational person and the self abandonment of consent right.Second,the implementation of strict informed consent rules will produce negative effects.On the one hand,"excessive consent" will increase the cost burden of information processors and information subjects,on the other hand,it will hinder the development of information industry and the renewal of social services.Third,there is no special personal information protection law in China,and there is no unified and independent personal information regulatory agency,which leads to the lack of effective supervision of informed consent rules in practice.Because the European and American countries are the first to carry out the legislation and practice of personal information protection,China can find ways to solve or alleviate the difficulties.The European Union strictly protects personal information through unified legislation,focusing on self-control of personal information protection.Its informed consent rule is similar to that of China,which adopts the "Notification + express consent" entry mechanism.However,the United States adopts decentralized legislation in special areas for the protection of personal information,which focuses on the free flow of personal information.The informed consent rule of the United States is applicable to the opt out mechanism of "Notification + constructive consent +withdrawal right" in most private fields,and the opt in mechanism in some special fields is the same as that of the European Union.From the perspective of European and American practice,whether it is the selection mechanism under the right discourse system or the selection mechanism under the market discourse system,there are advantages and disadvantages in different personal information processing scenarios.Therefore,this paper attempts to learn from the useful experience of Europe and the United States to put forward suggestions on the optimization of personal information informed consent rules in China,in order to expect the informed consent rules to adapt to the needs of China's current social development.First,reshape the value orientation of personal information legislation,aiming at the balance between the protection and development of personal information,put forward the parallel mode of select in mechanism and select out mechanism under the concept of scene.Secondly,the effectiveness of informed consent can be improved by strengthening the performance of information processor's obligation to inform,refining the requirements of substantive consent and exploring the economic incentive system of personal information.Third,strengthen the supervision of the application of the rules,establish a special personal information regulatory agency in the future personal information protection law,clarify the responsibilities and strengthen the supervision,and construct the industry self-discipline system as a supplement to the administrative supervision.