Research On The "Informed Consent" Rule In Personl Information Protection

According to the statistics of the Ministry of Industry and Information Technology,as of December 2022,the number of Internet users in China was 1.067 billion,and the number of mobile app software reached 2.32 million.Almost all software needs to collect user related personal information when users log in for the first time,and the protection of personal information faces serious challenges.The "informed consent" rule,which means that information processors should clearly inform the information subject and obtain the explicit consent of the information subject when processing the personal information of the information subject,is known as the "imperial rule" in the field of personal information protection.From the initial "Information Security Technology Public and Commercial Service Information System Personal Information Protection Guide"(hereinafter referred to as "Personal Information Protection Guide")to the "Personal Information Protection Law of the People’s Republic of China"(hereinafter referred to as "Personal Information Protection Law"),which was promulgated and implemented in November 2021,all requirements for "informed consent" in the process of information processing are too principled The vague normative content makes the actual implementation effect of the "informed consent" rule in real life unsatisfactory.In practice,there are a large number of user protocols with lengthy and obscure content;"Agree or go away" mandatory consent clauses continue to overflow;According to the 2022 "Risk Analysis Report on Illegal Collection of Personal Information by Apps" by the Qi’anxin Virus Response Center,more than 30% of the 300000 active app test samples actually have the situation of "collecting personal information without informing".In judicial practice,there are numerous differences as to whether the information processor has fulfilled the obligation of disclosure and obtained the consent of the information subject."Different judgments in the same case" is not an exception.All of these are clearly directly detrimental to judicial authority and the legitimate rights and interests of information subjects.The purpose of the "informed consent" rule legislation has not been substantially achieved.In view of this,in this context,this article conducts,directly addressing the current dilemma in the application of the "informed consent" rule,drawing on mature foreign legislative experience and combining the actual situation of our country,and proposes legislative suggestions to improve the "informed consent" rule for personal information protection in China,with a view to effectively safeguarding the personal information rights and interests of information subjects and contributing to the prosperity and development of our personal information protection cause.In addition to the introduction and conclusion,this article is divided into four parts.The introduction is the first chapter,and the contents of the remaining two,three,four,and five chapters are briefly described as follows:Chapter two,The basic issues of the "informed consent" rule.Firstly,this chapter explains the basic theory of personal information protection,including the connotation and legal attributes of personal information,and determines that personal information is a new type of right with both personal and property attributes;Next,this chapter clarifies the specific connotation of the "informed consent" rule,which includes two parts: "informed" and "consent"."informed" is the premise of "consent",and "consent" should be voluntary recognition after being fully informed;Then,this chapter analyzes the theoretical basis of the "informed consent" rule.The right of information subject to self-determination and the asymmetry of information between both parties in information transactions are the legitimate basis for the existence of the "informed consent" rule.Whether this is substantively guaranteed and effectively balanced is an important yardstick for verifying the effectiveness of established norms;Finally,this chapter combs the legislative practice of the "informed consent" rule in China.The normative content of informed consent mainly exists in the "Personal Information Protection Law",and at the same time,it can also be seen in other relevant legislative documents.Chapter three,The dilemma of the application of the "informed consent" rule.Based on a large amount of empirical research,this chapter selects three groups of typical cases with different judgments in the same case or causing intense discussion in the practical community,specifically presenting the current dilemma in the application of the "informed consent" rule,including:(1)the lengthy and obscure user agreements used by information processors to fulfill the obligation of disclosure,which seriously affect the effectiveness of disclosure;Secondly,the information processor adopts a "mandatory" consent method,which makes it difficult to ensure the authenticity of the consent of the information subject;Third,whether implied consent is valid or not,there are differences in judicial practice.In response to the practical application dilemma of the "informed consent" rule,this chapter conducts a detailed analysis of the reasons from the normative level,supplemented by relevant theoretical discussions,to lay the foundation for the formulation of regulatory recommendations.Chapter four,"Informed Consent" rule extraterritorial legislative review.This chapter sorts out the "informed consent" rules in the EU and the United States regarding personal information protection;Then,based on its specific normative content,especially in view of the current application difficulties in China,this article makes a review and analysis,and believes that it is of reference significance for the improvement of the "informed consent" rule of personal information protection in China to clearly stipulate the constituent elements of effective consent of information subjects,recognize the effect of implied consent,and take into account personal information protection and economic development.Chapter five,Suggestions for the improvement of the "informed consent" rule.This chapter responds to the application dilemma presented in the previous article and proposes suggestions for improving the macro consideration of improving the "informed consent" rule for personal information protection was conducted,and it was pointed out that when improving the "informed consent" rule,the concept of balancing the protection of personal and property interests should be adhered to,as a guide to guide the specific normative design.Further,including refining the disclosure requirements and implementing the disclosure obligations of information processors;Clarify the constituent elements of effective consent and effectively ensure the authenticity of the consent of the information subject;Distinguishing the effectiveness of implicit consent for general personal information other than sensitive information by stages,taking into account personal information protection and socio-economic benefits,and I hope to make a modest contribution to building a solid barrier for personal information protection.