Research On The Application Of Informed Consent Rule In Personal Information Protection

In the era of digital economy,the commercial use of personal information is more and more extensive,and the informed consent rules to protect personal information are facing difficulties in application.Theoretically,there are inherent shackles in the application of rules.On the one hand,the information subject longs to fully understand the use path of personal information;on the other hand,it is a paradox that the information subject desires to present the information content in a simple and understandable form.In practice,the format terms of the Privacy Policy are long and complicated,which cannot fully respect the meaning expression of the information subject.The consent made in the limited space of "choose one or the other" is forced.In addition,the unpredictability of technology makes the information not definite,which can not meet the "definite" requirement of the legislation on the information;In legislation,there is an imbalance between rights and obligations;Informed consent rules,as the core of personal information protection,are often "ignored" in private law relief,and can not be accurate and effective relief.Faced with all kinds of difficulties,some scholars have raised doubts on the existence or abolishment of this rule.Informed consent rule is an inevitable choice for personal information protection.Abandoning the informed consent rule is to think from the perspective of economic development.However,once the "use" of personal information is placed above the "protection",it will lead to the abuse of rights,because it ignores the risk nature of personal information.Risks need to be prevented,and informed consent rules can prevent them in advance,so they are irreplaceable.Informed consent rules are constructed based on the theory of self-determination of information,which contains a profound concept of freedom and people-oriented values.Even if there are omissions,they can still provide a protective barrier for information subjects.Finally,considering that China’s existing legal norms are also based on the rule,the idea of "abolishing the rule" is impractical and not feasible.The dilemma of informed consent rules can be divided into theoretical and practical levels.In this regard,we need to adopt different improvement paths.Theoretically,the application of informed consent rules has its inherent paradox,which cannot be solved but can only be alleviated.Therefore,the author believes that we can only deepen the connotation of norms and clarify the scope of application of rules from the perspective of rules themselves.On the practical level,it reflects the contradiction between personal information protection and utilization.We need to balance the two and seek a win-win way.On the one hand,the system of liability rules is introduced to encourage information processors to negotiate with information subjects independently and give full play to the commercial value of personal information.On the other hand,the obligations and responsibilities of information processors should be strengthened,the executive power of enterprises should be strengthened,and external supervision should be used to urge them to assume social responsibilities.Flexible use of rules,increase the application mode and intensity of consent,dynamic multiple authorization instead of static generalized authorization,respect the information subject’s right to know and consent.In the face of the inadequacy of private law relief,we need to face up to its causes and put forward solutions.The concrete scheme is as follows: first,revise the logical basis of rules to avoid abuse of rights by information processors;Secondly,introducing punitive damages mechanism to curb illegal behavior;Thirdly,the exemption clause should be added to prevent unfair distribution of obligations.Fourthly,the third order complaint handling mechanism is constructed to provide the exercise opportunity for the information subject.