| Personal information has been regarded as the most valuable resource in 21st century. However, when this has just been realized, it has been violated. Developments of computer technology and internet has brought about a revolution, in which by large quantity of personal information can be collected, stored, utilized, and even destroyed within a country or worldwide, unlimited by time and space. Whereas protection of personal information is not a new topic, it is a comparatively new issue to examine the value and significance of personal information and study how to protect it from the perspective of constitutional law. This article will discuss reason to protect personal information constitutionally, right basis for constitutional protection of personal information and how the constitution can protect personal information, and put forward solutions and basic suggestions for our country to provide constitutional protection for personal information.The basic right for protection of personal information is the right of self-determination on information. In the United States and other countries learning from the Americans, personal information protection has been discussed from the perspective of right to privacy, in which those concerning personal information has been named as the right to information privacy and focused on the control and autonomy of information. Federal Supreme Court of the United States has established the constitutional status of right to privacy in its cases and made it the basis for personal information protection. Following different legal tradition and based on right to human dignity and personality, the federal constitutional court of Germany has adopted the right of self-determination on information by taking advantage of those census cases, thus forming the constitutional basis for personal information protection. It would be easy to understand the American’s information privacy and German’s self-determination on information if knowing their background and context, otherwise, misunderstanding or even mistakes would be unavoidable. I prefer the concept of self-determination on information based on the following reasons. Firstly, it is much broad than information privacy; Secondly, it can better demonstrate the nature of right; and Thirdly, it can also better meet the demand of reality.In our country, self-determination on information is a basic right for constitutional protection of personal information, which can be proved as an unlisted basic right in the constitution by the following ways. Firstly, formal evidence. Clause of personal dignity in the 38th of the constitution provides space of explanation for new basic right relating to personality including self determination on information. As a general right of our constitution, the 33rd clause providing the state respects and protects human right is the main basis for the self -determination on information as an unlisted basic right. These two clauses are indispensable. On the other hand, other specific basic rights can be referred to, including personal freedom in 37th clause, freedom of house in 39th clause, freedom of communication and secrecy in 40th clause and right to criticize, suggest, complain, accuse and report in 41st clause. They have direct or indirect influence on the right of self-determination on information and their realization guarantees that of the latter. Secondly, substantial proof. To be a basic right, it should be valuable with sufficient constitutional significance and has the quality of basic right. Right of self-determination on information manifests the core of basic right, i.e., human dignity and personal independence. Self -determination on information is not only necessary for social democracy, but also for citizen’s autonomy. It not only safeguards the realization of personal freedom in a democratic society, but also is the inevitable result of basic rights system adapting to the development of information society. Thirdly, experience proof. It has been regarded as a basic right in many countries, especially those with developed economy and rule of law, despite that it has different terms in their different constitutional practices and texts.Current legislation and practices regarding personal information protection in our country has been characterized as following: firstly, it has small amount in terms of the quantity of laws and cases accepted by courts; secondly, protection has been weak due to the abstract stipulations and inadequacy of practical procedural protection; thirdly, it has been unevenly developed in that civil protection has certain traditional advantage, criminal law protection has gained new momentum de to the founding role played by the seventh amendment to the criminal law in 2009 in protecting personal information, whereas protections in administration has been far behind. The most threat to personal information has been from the state power. Electronic administration has been in fast development, and government data bases have been increasing. As a result, they will become more and more sizable, multiplying by the connection and sharing among bases. Taking such a trend into consideration, it is crucial for us to think how to protect personal information from the government violation. We can not take action until it has become worse.We can learn a lot from foreign experience about protection of personal information. First of all, legislative ideology and framework of international organizations relating to personal information protection has provided basis for various countries in this regard, among which the most important are guideline on the protection of privacy and transborder flows of personal data of OECD in 1980, directives for protecting personal data of EU in 1995, framework for privacy protection of APEC in 2004. In their early stage, most foreign countries have protected personal information by ways of constitutional interpretation. Recently, some have achieved this in their constitutional amendments. Legislations have also become an important way of constitutional safeguard of personal information. Due to different legislative ideologies and customs, their legislative modes have been diversifying. Some have been put both public and private entity in one law, but treated them differently, such as Germany, and Taiwan, and some have put them in one legislation and treated them equally, such as England, whereas others have treated them in different legislations, some of which has focused on personal information protection in administrative regulations, like the United States, and the other of which has paid attention to those both in administrative regulations and private areas, such as Japan.How to choose the ways of protection for personal information in our country?Firstly, as protection of personal information is a behavior, there should a certain logic and mode of action when making a certain choice. More specifically,(1)The prerequisite for the state to protect personal information is that the state has such an obligation. According to modern constitutional theory, ways for the state to protect citizen’s basic rights are legislation, administration and judicial enforcement.(2)The standard for the state to protect personal information is the balance between power and right. By the method of legal right analysis, balance of legal rights can be regarded as the most basic principal for legislative, administrative and judicial protection. (3) Four levels are included in the logic structure of protecting personal information by the state, i.e., the prerequisite is the conformity with the constitution’s ultimate values; the best result is the balance of power and rights; it has two standards, which require that citizens have sufficient right to restrict state power, while the state power is strong enough to stop any abuse of rights by the citizen; the standing points is to increase the amount of legal rights.Secondly, as a fundamental right, self-determination on information is the constitutional basis for protecting personal information. How to protect personal information is a constitutional question and a question of constitutional enforcement in terms of realizing fundamental rights. Constitutional enforcement is to put rights and obligations set by the constitution into practices. Based on reality in our country, we have two ways to protect constitutionally personal information. One is constitutional review, a necessary but difficulty choice, while the other is legislative protection, which is necessary and plausible.Lastly, a basic legislative suggestion for protection of personal information: (1) Self-determination on information should be adopted as the basis of legislation; (2) Different legislations should be made, among which the priority should be given to personal information protection in administration; (3) The two standards mentioned in the above should be followed. Firstly, legality should be required for the government when collecting, storing, using and transferring personal information, which is the first basis to ensure the citizen has sufficient capacity to resist state power and have contains principals of legal priority and reservation. As a higher demonstration of the citizen’s capacity to resist state power, rationality demand much more for the exercise of state power. The government should conform to the properness, necessity and proportionality when collecting, storing, using and transferring personal data. Except core content, a set of specific rights should also be devised satisfying different fundamental rights. Legislation on personal information protection should include, but not limit on, rights to review and obtain information; rights to request to correct; supplement and delete information; right to request to seal information; right to object information handling as well as right for compensation. Apart from these, an independent agency is necessary to ensure the enforcement of those legislations. Secondly, rights should be balanced by power to stop right abuse by the citizen. Therefore, exemptions and certain discretions should also be provided in the legislation. (4) Personal information protection should be coordinated with the disclosure of government information. It is recommended that those two should be applied independently so that the citizen can choose relevant legislations for his specific litigations, while enforcement and jurisdiction have their own rules to decide to protect or disclose within the same field or by the same legislation, thus avoiding conflicts in application and interpretation of different laws. For any convergence of two laws, rules regarding government information disclosure should take priority. |
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