The Protection Of Personal Sensitive Information:Theoretical Basis And Institutional Construction

The protection of the rights and interests carried on personal information in the information age is of important significance.The difference of information classification is of different meaning for protection,the existing classification is mainly based on’whether associated with individual’,’whether for privacy’,’whether special subject’,which is hard to help to protect important rights and interests carried on personal information.If the idea of ’whether a threat to the fundamental rights and freedoms of individuals’ is taken as classification basis,personal information can be divided into personal general information and personal sensitive information,thus it is of great significance to distinguish the information ’sensitivity’ on the rights and freedom for the protection of the rights and interests carries on information.Sensitive personal information is mainly of the risk of causing significant information for the fundamental rights,which is not necessarily for privacy,has certain property interests but more of a personal interest.From the perspective of legal philosophy,the basis for the protection of sensitive personal information lies in satisfying individual’s moral rights,realizing basic human rights,individual free will,and social justice.The existing theories of protecting personal sensitive information and of protecting information have similar characteristics,which are mainly individual independent processing theory,privacy and reasonable expectation theory,information self-control theory,personal information property theory,and personality protection theory.Judging from the philosophy of law and the existing information protection theory,personal sensitive information is justified in protection.At present,there are many problems in the protection of personal sensitive information in China.From the perspective of rights protection,it is difficult to obtain adequate protection of personal sensitive information under the existing legal framework;from the perspective of contractual protection,the existing format clauses form an impact on the protection of sensitive personal information;from the perspective of rights remedy,the intensity of the existing remedies for rights violations is obviously insufficient.The main reasons are that the legislation fails to respond in time to the challenges brought about by technological changes,lacking a unified definition and protection mechanism,and single perspective on how to judge sensitive personal information.Based on the above-mentioned defects in China’s personal sensitive information protection,China should establish a personal sensitive information protection system.From the criteria defined by the basic principle of sensitive personal information,China should consider the balance between information protection and information utilization,between public interests and personal interests,between international perspectives of modern experience and the traditional factors of the country’s national conditions.The formulation of specific principles shall be divided into three parts:collection,processing,and utilization.When collecting it,it shall meet the principles of necessity,legality,and explicitness.When dealing with it,it shall meet the principles of openness,transparency,and purpose restriction.When using it,it shall meet the principle of minimization,utilization notification,and storage restriction.In terms of specific institutional arrangements,China should define the criteria for the determination of sensitive information objects as standards for the level of harm,the severity of damage results,and the continuation of damage outcomes,as well as important ethnic information,biometric information,genetic information,and personal medical physiology information,crime records,sex life,and sexual orientation information are listed for protection.The right of personal sensitive information includes informed access,right of correction,and special right to delete.As for the exercise of personal sensitive information rights,it is necessary to consider the national interests,social management needs,public interest needs,and set restrictions on rights.For infringement of personal sensitive information,resulting in damage to personal sensitive information rights and related rights and interests,the civil subject of infringement should be subject to administrative fines,infringement compensation,the administrative subjects should be subject of state responsibility for infringement of sensitive personal information,of criminal responsibility for the more serious violations.In addition,the country should promote the protection mechanism of personal sensitive information by forcing localized centralized storage of information,dynamic security assessment mechanisms,and mandatory contractual guidelines.