| The rule of informed consent is a basic rule for the protection of personal information under the laws of China.This rule is also a core legal rule for the processing of personal information.In the current big data era,it is necessary to re-examine the rule of informed consent under the framework of the Civil Code and the Personal Information Protection Law for the protection of personal information on the basis of protection of human dignity and personal freedom,and to discuss the application and exception of the notice rule and the consent rule respectively.Chapter 1 of this thesis elaborates the notice rule.To make an effective “notice”,the following requirements shall be satisfied.Firstly,in terms of the time requirement of notice,the information processor should notify before the processing of personal information,and should also fulfill the obligation of notice before changing the notice items.Secondly,in terms of the quality of notice,the information processor should be true,accurate and complete in a prominent manner and in clear and understandable language.Thirdly,if the information processor makes notice by formulating personal information processing rules,the rules shall be open,easily accessible and kept.Fourthly,in terms of the content of the notice,the information processor shall inform the general notice items and special notice items.In addition,information processor’s notice is often pre-formulated and not negotiated,and thus can be deemed as format clause.Therefore,notice should be subject to the format and content regulations of the format clause,and there should not be a situation where the format clause is deemed invalid.Chapter 2 of this thesis analyzes the exception to the notice rule.The exceptions include two categories,respectively,those where notice is exempted and those where notice cannot be given in advance.The first category of exception include three cases,respectively.Firstly,cases where confidentiality is required by laws and administrative regulations,mainly based on the detection of crime,counter-terrorism and other situations;secondly,cases where notice is not required by laws and administrative regulations;and thirdly,cases where notice would hinder the authorities from performing statutory duties.The second category of exception refers to such emergency case for the consideration of the life,health,or property safety of the individual concerned,but should timely notice is still needed thereafter.Chapter 3 of this thesis elaborates the consent rule.Consent is a kind of authorizing expression of intent as regards the legal nature.There are three format requirements of the consent rule.Firstly,the explicit consent of the information subject shall be obtained for processing general personal information.Secondly,the explicit consent of the information subject shall be obtained for processing sensitive personal information.Thirdly,consent shall be given before the act of processing.There are also three substantial requirement of the consent rule.Firstly,the information subject shall have the ability to consent.Secondly,the information subject must give consent voluntarily.Thirdly,the information subject shall give consent on the basis of full knowledge.Separate consent is applicable to five different cases under Articles 23,25,26,29 and 39 of the Personal Information Protection Law.With regard to withdrawal of consent,the provisions of Article 15 of the Personal Information Protection Law shall apply.Chapter 4 of this thesis analyzes the exception to consent rule.Since personal information is also related to the circulation and use of data,public interest,and the legitimate rights and interests of others,eight exceptions to the consent rule are provided in the Civil Code and the Personal Information Protection Law for different aspects such as public interest,necessity of performing contracts,human resources management,and public information,etc.,as elaborated case by case with reference to Article 1036 of the Civil Code and Article 13 of the Personal Information Protection Law. |
