Research On Choice Of Law About Cross-border Infringement Of Personal Information Right

The personal information right is an important personal right of natural person,and it will be violated if the right-holder doesn’t agree to transfer and process his information across the border.The legal application of the cross-border infringement of personal information right should first solve the problem of identifying the right,which is the right of natural persons to control their own information,its object range includes general information and sensitive information.The processors and controllers of the data can have a lot of impact on cross-border infringement of personal information.Personal information belongs to spiritual personality right,but it also has property right attribute.The Civil Code puts the privacy right above the protection of personal information right,and there is a legislative tendency that the protection of privacy right is stronger than personal data right.The legislation doesn’t distinguish between the both right for a long time,which leads to the unclear boundary between them.Personal information right interferes the personal and property interests of natural persons,and the cases of cross-border infringement of personal information right will also indirectly affect national security and social stability,so the protection of personal information right should be pay attention to.Due to the different legislative background and tendency,the rules of personal information right vary greatly among countries.In countries such as the US and the European Union,personal information right is also called data privacy right or personal data right.The United States has promoted the legislative tide of personal information protection through the state-level legislation,while the European Union has completed the systematic protection of personal information right in the member states’ domestic law and the unified legislation.The two important factors of cross-border violation of personal information right are “Foreign-related” and “Violation of personal information right”.In addition to“Foreign factor theory” and other related theories,we should judge according to the subject,object and legal fact of civil legal relationship.The infringement of the cloud service provider’ s operation in any link of data source,storage,transmission and processing doesn’t mean that the location has a stable connection with the civil legal relationship.It’s necessary to judge whether the infringer is in a position closely related to the case.The collection and processing of personal information without personal consent is an act that infringes personal information right.The personal information protection law clearly lists the specific manifestations of the violation of personal information right.Article 15 deals with the rules for the application of law to the content of personality right,while article 44 is the rules for the application of law to the tort liability in general,article 46 is the choice of law about “by the network or other means” infringement of name right,reputation right,privacy right and other personality rights.Personal information right cross-border tort liability may use Article 15 and Article 46 because of special law is prior to the general law.There are four types of extraterritorial conflict rules concerning the tort liability of cross-border personal information right: lex loci,habitual residence,autonomy of will,and the most significant relationship.This paper focuses on the conflict laws of personality rights and personal data rights in Hungary,Bulgaria,Switzerland,Turkey,the United States and the European Union,and summarizes the international trends on cross-border personal information right tort liability extraterritorial conflict laws.It’s the common awareness of EU and sovereign states to support the principle of victim autonomy,the principle of victim benefit,the limitation of infringer’s predictability and the diversity of connecting points.Following this trend,re-reading Law of Law Application of Foreign Civil Relations,the content of Article 15 of the right of personality is not clearly defined and there is a cross-link with Article 46;Article 46 the infringement ways of personality right is not clear,the scope of infringement is not limited,the law of habitual residence as a single link also has adverse effects.By reflecting on the shortcomings and the direction of improvement,Article 15 should exclude the personal information right and its tort liability regulation.It will add impetus for our country to conform to the international development trend and realize the unification of law application of spiritual personality right tort liability.