Plight And Approach Of Informed Consent Principle’s Application In Personal Information Protection

The informed consent principle is known as the "imperial principle" of personal information protection.However,in practice,the formalisation and generalisation of the application of the traditional principle of informed consent has led to the alienation of informed consent and negative economic externalities.Although we have enacted the Personal Information Protection Act to deal with this,the end result may not be as good as it could be.Since the majority of personal information subjects lack the capacity to give "informed consent",or even "Buddhist informed consent",the relevant provisions are likely to be disregarded.In addition,there is an inconsistency between Article 13 of the Personal Information Protection Act,which states that the processor of information does not need to obtain consent if the information processed is necessary for the provision of a product or service,and Article 16,which states that informed consent still applies to personal information that is necessary for the provision of a product or service;Article 31 is also inconsistent with Article 19 of the Civil Code in the application of the principle of informed consent to personal information of minors between the ages of fourteen and eighteen,and would impede the relevant protection.At the same time,the Personal Information Protection Act leaves room for discussion on the protection of personal information of the deceased under the principle of informed consent.There are two reasons why these plights emerge.Firstly,the original purpose of designing informed consent is distorted.The original purpose of applying the principle of informed consent to personal information is to balance the rights and obligations between the subject of personal information and the processor of personal information,as well as the protection of the rights and interests of personal information and the commercial use of information,but the deviation from the normative level causes its application to be formal,and the unclear definition of the connotation of "informed" and "consent" makes it difficult to achieve the prevention of personal information security risks in advance.Secondly,there is a contradiction between the dual attributes of personal information.The contradiction between private and public attributes makes it necessary to apply the principle of informed consent in a reasonable way,and the contradiction between the attributes of personality rights and property rights makes it necessary to apply the principle of informed consent in a way that balances the protection of the rights and interests of personal information with the commercial exploitation of information.Some of the more popular approaches are the introduction of opt-in mechanisms,dynamic consent models,financial incentives and scenario-based protection.The first two approaches have been translated into the provisions of the Personal Information Protection Law,but the latter two approaches are currently not suitable for the protection of personal information in view of the fact that the chaos of personal information in China has not been cleared up.In addition,it is also advisable to find solutions to the dilemma of applying the principle of informed consent by improving the infringement remedy mechanism for personal information subjects,guiding the industry in which information processors work to self-regulate,improving the regulatory mechanism for information processing and providing differentiated protection for special information subjects.